“The law in a democracy is never potent in a vacuum. It must work in concert with the people.”
No one likes being told what to do. Especially when people are debating about whether or not the government should prohibit certain conduct, it is en vogue to veer on the side of an individual’s freedom to do what whatever they want. This helps explain the popularity of the political platitude, “You can’t legislate morality.” And while this maxim is certainly an easy way to win a debate on Facebook and get your libertarian uncle nodding vigorously, it is used so often and so conclusively that few people stop to think: what does it actually mean?
In contemporary parlance, it usually invoked to mean that the government is not the right actor to stop people from doing something just because it is “immoral.” However, the simplicity of the maxim obfuscates its nuance. It seems that there are actually two questions at issue: should the government legislate morality, and can the government do it? The first is a question of normativity, and the second is a question of practicality.
Some more liberal authors tend to consolidate the two questions, arguing that the government should only enforce moral laws when it is actually capable of curbing a given behavior. This obviously bolsters liberal social politics, since it skirts the question of whether or not abortion or transgenderism or drug use is actually ethical and simply asserts that the government is inept at regulating such conduct and therefore should not attempt to do so.
However, even this assumes a certain conception of the nature of morality and the nature of law, implying the government should only legislate what it can enforce. But all laws (either in intent or outcome) either facilitate or impede certain conduct. The pragmatic perspective doesn’t address the heart of the question: does the government have a duty to promote certain types of moral behavior?
Contrary to popular belief, “enforcing morality” is not only a possible purpose of law, it is a necessary function of law. Morality, in essence, is nothing more than a view of what is good for individuals and for a society, often in light of some conception of the ultimate Good for mankind.
All laws, to some extent, impose a view of what is good for society. Even the most hardcore libertarian, who thinks the government should be one man in a swivel chair, implicitly believes that free choice is the highest moral good. They may pay lip service to respect for individual moral choices, but their view of government suggests that they believe uninhibited choice is normatively better than for individuals to be forced into anything. Furthermore, they argue that the material goods spawned by unmitigated capitalism are best for man. Sure enough, every libertarian I have ever met has said that it is “right” for the government to act this way. Theirs is a utilitarian morality, but it is a morality nonetheless.
In fact, nearly all discussion of social issues is laced with moral language. Why does the law proscribe murder? Because we believe that murder is “wrong.” Why does the “social justice” movement oppose manipulative business practices? Because economic inequity is “unjust” (read: against the proper order of things; immoral). When it comes to bipartisan social issues, there is almost no contest about this. Should the government prohibit human trafficking and crack down on sexual assault? Absolutely. Why? Because sexual exploitation is wrong.
It is only when our moral frameworks diverge as a society that we suddenly become wary of the other party’s attempts to “legislate morality.” In the late 20th century, it was the LGBT movement’s contention that anti-sodomy laws and gay marriage bans were “legislating morality” and that they were on the side of neutrality and freedom.
But even the language of the 21st century civil rights movement reveals its understanding of the moral nature of law. When gay individuals say they have a “right” to marriage, they are saying that it is “right” that they have the chance to marry. There is some companion obligation on society to allow them to marry. To withhold marriage is wrong, they say, and to allow it is “right”—moral.
The question is not whether the law enforces morality, but whose morality it enforces. Of course, this reveals a key distinction between philosophical liberalism and conservatism. In a liberal framework, there is no law higher than the will of individuals, and so government is an artifice of human creation to enact the will of the majority. It is no wonder then, that they are so willing to abandon moral causes at the first sight of a practical obstacle—it is because they don’t really believe it is immoral in the first place. The line between enforced “morality” and the raw will of the powerful becomes eerily thin.
Conversely, the nearly universal quest for a moral society (and the surprising amount of agreement on basic principles of justice) seems to indicate that the conservative has been right all along: there is a higher moral order above even the law of man to which we all aspire. Russell Kirk considered it the first principle of conservatism that “there exists an enduring moral order,” which dictates the proper ends for man and for society. Only a society in harmony with that moral order would flourish.
Therefore, it is not just a necessary reality that law enforces morality, but government has a duty to pass laws that are in line with universal norms of morality. There will certainly be debate about what those standards are, but we must dispense with the myth that the law takes no stand on what is right, and instead ask: what is right?
With this in mind, the second question becomes less important. Can the government enforce moral norms through law? It depends. But in most cases, this shouldn’t impact whether or not the government should. There are many ways for a law to be effective without resorting to criminalization.
Laws can be didactic, they can set societal goals, they can discourage immoral conduct, they can reward just conduct, and even rehabilitate habitual offenders. If just and moral laws are those which lead people towards that which is just and moral, practicality is only a consideration insofar as it helps us determine if a law is fulfilling its intended purpose.
The liberal is right to point out that many laws which intend to enforce moral norms have failed, prohibition being a prime example. Indeed, the law in a democracy is never potent in a vacuum. It must work in concert with the people. A law that has lost popular support will always be impotent, and where the popular morality and the legal morality are at odds, it is the latter that will capitulate. One need only compare the surge in acceptance for LGBT rights and the collapse of anti-LGBT laws as a proof for this principle. As Alexis de Tocqueville said back in 1832, the unwritten constitution—the morals of a people—will always usurp the written constitution.
However, practical difficulties do not negate the primary obligation that governments have to pass moral laws. The difficulty of enforcing laws should not drive us to trust in unmitigated human license. Rather, it is rather the job of the prudent statesman to craft laws that take into account the exigencies of circumstance and the particularities of a people and guide them towards the Good.
As Russell Kirk wrote, “Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order. A just government maintains a healthy tension between the claims of authority and the claims of liberty.”