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The law and morality

August 15, 2010

This will be my last blog for a while. I wanted to rattle some quick blogs off right away to just experiment with the wordpress format. This last one will be on a subject that I have been thinking about a lot, which is the relationship between law and morality.


You often hear from Libertarians and many people on the left that the law should not legislate morality. This is not really true. There is a relationship between law and morality in the sense that certain laws against rape and murder are definitely based in morality. In fact, many laws are based on morality while a few others are based on issues of negligence and safety that one could stretch to include under the blanket of morality. What people mean when they say this, is that morality should not be the only criteria for deciding when something should be legal or illegal.

The objection is to the idea of morality conflicting with liberty and the idea that “popular morality” (majority rules) should be the template for what is and is not legal. The reason we have the judicial branch in the United States is partially to protect individual liberty from the “tyranny of the majority.” They don’t always do this but that is what they are supposed to do and that is why the people on the right who whine about activist judges and ignoring the will of the people are dead wrong when it comes to issues like California’s Proposition 8.

Many people claim that the basis of law in the United States is religion based and specifically based on the ten commandments. Of the ten commandments only murdering and stealing are clearly illegal and another commandment, which prohibits bearing false witness, could be seen as legal. The first five are about how to worship God and are obviously in no way enforced by law. The one that is left, that pretty much everybody agrees is immoral, is adultery. Adultery is not illegal even though nearly everybody believes that it is immoral. So we obviously don’t believe that everything that is immoral should be made illegal.

One of the problems with a theocratic basis for law is it violates everyone else’s right to freedom of religion. If we were going to choose a theocratic basis then banning Gay marriage would be great for some groups but religions that allow gay marriage and the non-religious would be discriminated against. Thomas Jefferson and James Madison also made a theological argument for separation of church and state based on free will. They claimed that excluding atheists and Jews from public service was fundamentally unchristian because it resulted in coercion from the state. This made a person’s decision to become a Christian meaningless because the person was not free to choose this.

Also if we are going to go this far why not use the law to enforce diet? Pork and shellfish could be made illegal if a biblical basis is all we need. Also practices such as killing “a witch” and even vigilante justice could be made legal by a theocratic basis for law. In fact, they have been historically.

Philosophical Justifications for Law

Thomas Hobbes: Hobbes based his justification for the State on the need of humans for security. He advocated the idea of a monarchy where a sovereign ruled over the populace. The sovereign would have absolute power except that he could never instruct a citizen to harm himself or commit suicide. Citizens submit to this arrangement through a social contract that is made in order to avoid “the state of nature” where life is “nasty, brutish and short.” The basis for morality is argued to be this social contract. Hobbes argued that morality exists in order to help us accomplish our goals in society by making agreements between ourselves.

John Locke: Locke replaces Hobbes’s monarchy with a Democratic Republic. The reason people form the social contract is to have greater liberty. Locke places a heavy emphasis on consent and while he thinks Democracy is important he doesn’t trust the people not to strip away minority rights and advocates a system with checks and balances. A devout Christian, Locke believed that morality came from God but doesn’t think human laws should be based on God’s laws. Locke stated that the more laws that a society had the worse off they would be. If he was alive today he would probably advocate legalization of gay marriage, drugs, prostitution, pornography and any other “vices” that he saw as being victimless crimes.

Jean Jacques Rousseau : Basically the same as Locke but instead of accepting Locke’s liberty Rousseau claims that government was formed to give greater social autonomy and social mobility. In this way Rousseau is like the communitarian version of Locke whose views were closer to libertarianism. Rousseau also did not trust Democracy. He based legal rights on what he called “the general will” which was meant to assure equality. The general will was established by throwing out extreme viewpoints in favor of the general consensus. For instance, because there are people in the United States who question marriage for certain people but nobody questions marriage itself on its own terms Rousseau would advocate marriage for everybody who wants it.

John Stuart Mill: Mill rejected the social contract theory in favor of Utilitarianism, a moral belief that advocates the greatest good for the greatest number of people. But Mill didn’t think Utilitarianism alone would do it and it had to be tempered with liberty. Mill argued that by respecting everyone’s personal liberty to pursue happiness as they saw fit it would lead to the greatest happiness. Mill was also an advocate for gay rights way back in the 19th century.

John Rawls: Rawls based his idea for societal justice on fairness. He borrowed social autonomy from Rousseau and based his moral component on Immanuel Kant’s second categorical imperative that states that human beings should always be treated as end onto themselves and not merely as means to an end. This means that it is moral to respect another person’s goals and ideals even if you do not share them. Rawls also invented “the original position”, a thought experiment in which society is formed by a social contract by individuals who are unaware of any advantages or disadvantages they will have in life. (In other words religion, gender, race, social status etc. is unknown.)
It is important to note that these five political theories, as different as they are, have a few things in common.

1. They all reference ethics but not as the only basis for law. They all use ethics and something else.
2. None of them uses religion as a basis for law.
3. All of them, with Hobbes as the weakest example, make allowances for equality and do not base justice on “the will of the people.”

Objections to Gay Marriage

After Prop 8 was overturned in California I have read a bunch of blogs that were very upset about it and opposition breaks down in three main categories.

1. Homosexuality is unnatural
This argument is irrelevant. It neither helps nor hurts either side. Organ transplants are “unnatural” and some religions have objections to them but there is no push to make them illegal. Part of this argument is that homosexuals shouldn’t be grouped together as a single group like a race. They have a point. Japanese, Greek and Roman cultures saw homosexuality as a recreational activity between men. Sex with women was for procreation but sex between two men was for pleasure. But do they really think that kind of arrangement is better than gay marriage? Even if homosexuality is voluntary so is religion. What religion you are is completely voluntary so by the same logic discrimination based on religion is completely justified.

2. No such thing as gay rights

People who advocate this basically say that homosexuals have no right to marriage and like to point out differences between this and discrimination against African Americans. They also say that marriage for gays is not equality but treats them “special.” First off, it is different than discrimination against African Americans but there was a time when interracial marriage was illegal and that is a pretty spot on analogy. Secondly, heterosexuals can marry the person they want. Homosexuals want the same right. How is that different or special in any way? The answer is that it isn’t.

3. Gay marriage will hurt society.

I could go through statistics but instead I will post an episode of the Showtime series Bullshit! It isn’t an ideal source because they use hyperbole, ad hominems and a lot of dark humor but they also back everything up with statistics and experts.

Marijuana Legalization

Just as I was preparing this I came across this blog:

It was written by a Muslim in opposition of Marijuana legalization and makes a completely theistic argument. It is also full of logical fallacies. I will go through each major point and at the end I will post a video from the group LEAP (Law Enforcement Against Prohibition) as my source. Like the other videos this keeps me from having to constantly link sources when anybody can just use Google and look it up for themselves.

1. “First of all, legalizing marijuana will inevitably lead to a massive increase of its use. You can pretend that “everybody already smokes it,” but the fact of the matter is that the only thing holding back a LOT of people from doing drugs is the fact that they are illegal. Sadly, people don’t respect themselves enough to look past the law.”

He backs this up with nothing but opinion. This is a common complaint of opponents of legalization but there is no evidence to back it up. (see video)

2. “The increase of pot usage will radically affect people’s everyday lives. Think for a moment about the effect of, say, alcohol in society. Alcohol, like cannabis, is an intoxicant that inhibits mental and bodily function, causing people to not behave the way they normally would under a sane mind. Think about how many lives alcohol affects right now. Think about the broken households, the abandoned children and abusive relationships it causes. Think about the catastrophic social failure that is drunk driving.
Now, consider the fact that alcohol essentially discourages consumption because you can overdose on it and die. Compare that to marijuana, a drug that you can not literally overdose on. Don’t you think people will end up intoxicating themselves more over longer periods for that reason alone? The fact that you can’t overdose on pot should be greater reason to prohibit it!”

The things he says are pretty true about alcohol but nobody is rushing to bring prohibition of alcohol back. As the child of an alcoholic I do not blame my parent’s actions on the drug itself but on the person. The idea that this will cause some kind of massive social problem is once again based on nothing but opinion. He is making a slippery slope argument. This is a fallacy because he is saying that something will have inevitable consequences without anything to back it up.

3. “Again, consider the differences between alcohol and pot. Alcohol is drunken, while pot is smoked. Pot is therefore capable of inflicting second-hand smoke and alcohol does not. I’d hate to see the kind of households the children of pot smokers grow up in.”

This is a good point in some respects but abusing your children would be a crime regardless of whether pot is illegal. He goes onto say that pot is potentially more dangerous than alcohol based completely on second hand pot smoke. He really underestimates how destructive alcohol can be.

4. “If, for medical purposes, marijuana is absolutely necessary, then I can see a valid argument there. However, if there is a less harmful and less addictive substitute, why not use that instead? If the true purpose is medical, then we should strive to find the best solution that causes the least amount of side effects. If such a substitute does not work in all cases, then I don’t see a problem using cannabis in a controlled environment only for the most extreme conditions. After all, more dangerous drugs are used medicinally.”

Marijuana is not habit forming. It is also cheaper than most drugs that cancer patients use and has fewer side effects. Once again, Google it. He obviously knows very little about medical marijuana. The main benefit is that it reduces the nausea of cancer patients allowing them to be more comfortable during chemotherapy and helps them to eat without vomiting.

5. “But honestly, what percentage of legalization promoters are doing it only for the sufferers of diseases? Get real.”

A rhetorical question. Most of the rest of the post he refers to anybody who advocates marijuana legalization as “pot heads” which accounts for two fallacies. The first is an ad hominem attack and the second is a fallacy of motive. Just because somebody may have a motive to support some cause doesn’t mean their argument is bad.

6. “Okay, let’s move on to the economic incentive. Maybe the monetary gain that the government would receive will somehow outweigh the social harm? To me, such money is dirty money. Because it has been earned through underhanded and dishonest means (it exploits and promotes corruptness), any good the money does is automatically canceled out. Morally and ethically speaking of course. As long as you’re feeding off of people’s addiction, thereby enabling it, no real good can result from it.”

He is talking about money you would get from taxation. Never mind that legalization might save us 100 billion dollars a year that can be used for more worthy programs. Never mind that it would reduce violent crime and slow the trade of more harmful drugs that piggyback on the marijuana trade. Also once again, Marijuana is not habit forming. It also can never be seen as dishonest since people voluntarily use the product.

7. “The real source of the crime and corruption is not the law itself, it’s that people want the law to be broken! That’s what needs to change: people’s attitudes and acceptance of drug usage. THIS is why Prohibition failed. People wanted to break the law. This doesn’t mean the law was wrong, just that people were not ready for it.Again, Islam has the answer! Masha’allah. Intoxicants were hugely popular among the Arabs before Islam. This is what is referred to as the the Age of Ignorance. People didn’t see the extended consequences of their alcohol consumption. They just saw the immediate benefit. They were ignorant.

Then the Prophet Muhammad (peace be upon him) was sent to them with the message of Islam. But alcohol was not prohibited at once. No no no! At first, Allah told the believers that alcohol was bad for them. After a period, Allah prohibited being in a state of drunkenness during prayer. Then finally, alcohol was prohibited outright. The believers, upon hearing the verses of prohibition, literally spit their drinks and some even caused themselves to vomit! The streets were flowing with wine. Nowadays, Muslims are the largest group of non-drinkers in the world, by far. This was achieved without any amount of force.
The secret? True belief in Allah and having a strong spiritual connection with Him. Once the population has this or something resembling it, then after a gradual process true prohibition will be achieved. Society would no longer demand such drugs because the individuals would feel terrible deep down if they did them.”

So in other words give up all your civil rights and then we’ll be better off. He basically argues for a theocracy. I don’t know how he gets that prohibition of alcohol isn’t due to force. Many Muslim countries ban alcohol but I’m willing to bet it isn’t completely voluntary.

8. He then goes on to post this video:

The purpose is to make fun of the video. He misses the point of the video. I now present the LEAP video and another video for your entertainment.

2 Comments leave one →
  1. August 15, 2010 3:43 pm

    Legal: You should not betray your spouse and keep your sex-life inside the marriage. In Europe we do see there should be laws against adultery and they are abolished like laws prohibiting sex outside marriage. Marital faithfulness is not concern of the State and its legal apparatus.

    Moral: but it is still morally condemn to have extra-marital sex or a woman to have promiscuous sex i Europe to. But it is only punished socially, not by police or judges.

    The problem is, a marriage is at same time moral and legal issue. In Finland the church is thinking about to give up its legal right to weddings, because the state want to legalize gay-marriages, and the church would be compelled to wed same-sex partners, if it will preserve its right to join in marriages people. In the future the pairs should first get the legal marriage in city administrative court, and then moral marriage in local church, as the case is in France today.

    • August 15, 2010 7:32 pm

      In polls adultery is often one of the most repugnant moral violation to Americans. Though it is not a crime the law does get involved in cases of divorce because someone who has committed adultery has essentially broken their legal contract.

      It has been suggested in the United States that the state should simply issue civil unions and leave marriage to the church. This essentially separates the religious morality and legality of the issue but law and morality can never be completely separated, There are almost no laws where morality could not be argued as a justification. The only ones I can think of off hand are local laws about homeowners upkeep on their houses.

      Just because gay marriage has been legally recognized this should not force any church to perform gay wedding services. For years Catholics refused to allow marriage within the church to those who were previously divorced. The rights of churches to recognize what marriages they will is essentially there religious right and the state has no place in violating that. But the church has no place in dictating what marriages the state recognizes, which in the interest of fairness is all of them.

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