Wednesday, August 25, 2004

Law & Morality

There seems to be quite a strong connection between law and morality. Although people sometimes say "you shouldn't legislate morality", they presumably don't really mean this - why would we outlaw rape and murder if they weren't wrong? Instead, I suppose they mean that people shouldn't impose their personal moral views (especially regarding sexuality) upon others. I would agree with that sentiment, though my reason is precisely because I think legislation should be morally informed, and the "moral views" in question are entirely misled.

As a quick aside: it is unfortunate that the word "morality" has become associated with conservative values, because the obvious invalidity of those values to many people tarnishes their attitude towards morality as a whole. And that is a damn shame. When conservative groups advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and instead stand up for what is right. But I digress - this isn't intended as a post about how liberals need to reclaim the moral high ground.

So we accept that there is a connection between law and morality, but what sort of connection is it? Their domains are clearly not entirely identical - for example, it may be wrong to lie to your parents, but it certainly is no business of the law. Perhaps the best way to explain this is to acknowledge that the law is an extremely blunt tool, and so will be of no help when dealing with minor or subtle moral issues.

But even if some morality is outside the scope of Law, could Law's domain be a subset of the Moral? That is, should we only ever outlaw immoral acts, and never morally permissible ones?

I would like to say 'yes', as it does seem like a good principle. But I can't, because it contradicts my position on some other issues. That is, I think morality is purely 'other-regarding' in nature, and merely harming yourself (e.g. smoking in private) is not immoral. On the other hand, I previously suggested that state paternalism could be acceptable even in cases where Mill's harm principle would forbid it.

So I'm stuck with the following inconsistent triad:
1) X should be illegal only if X is immoral (and sometimes not even then)
2) Purely self-harming actions are not immoral
3) Sometimes, purely self-harming actions should be illegal

Those claims cannot all be true. Each strikes me as plausible, though I am not certain of any of them. I'm sympathetic towards utilitarianism as a moral theory, which implies the falsity of (2). But I also think of morality as a purely social phenomenon, so (2) should be true. So that's another conflict I'll need to sort out someday. For now though, I'm most inclined to doubt (1).

To approach this topic from a slightly different angle now, I owe to Alonzo Fyfe the intriguing suggestion that we understand law and morality in terms of belief-desire psychological theory. That theory claims that any human action can be explained solely in terms of the beliefs and desires of the agent. For example, if I turn on a heater, this may be because I desire to be warm, and I believe that turning on the heater will achieve this end. To apply this to our current topic, consider how society can influence the actions of its members. According to belief-desire psychology, there are two broad options: change someone's beliefs, or change their desires.

Morality, by this understanding, corresponds to the latter option. That is, morality is a system of socialisation whereby society instills in its members the desire to act in certain ways. (I discuss some of the implications of this view in more detail here.)

The other method of influence is to alter people's beliefs about how best to fulfill their desires. This is where Law comes in. Its role (according to this interpretation) is to serve as a deterrent for those who, for whatever reason, fail to be bound by morality. It achieves this through the threat of punishment, i.e. by instilling in citizens the belief that breaking the law is not in their own best interests - they could get caught and sent to jail, which would surely thwart many of their other desires.

So by this view, law and morality are just two sides of the same coin - namely, that of socialisation. Morality seeks to influence our behaviour by way of our desires, whereas law is the 'back-up' option, and targets our beliefs.

Do you think that sounds plausible? Comments welcome, as always.

14 comments:

  1. > 1) X should be illegal only if X is immoral (and
    > sometimes not even then)
    > 2) Purely self-harming actions are not immoral
    > 3) Sometimes, purely self-harming actions should be
    > illegal

    1) is certainly false, in fact most of our laws are in this category. Anything like accounting procedures or the road code, for example.

    2) is false for what I believe to be the common understanding of 'immoral'. Gluttony, sloth and all that. Some people might define immoral in a way that makes 2 true by definition, but then it wouldn't be a very interesting claim.

    3) I would say this is probably false, except that there might be cases (e.g. drugs) where it's worth doing this in order to make it easier to catch those who harm others.

    ReplyDelete
  2. "1) is certainly false, in fact most of our laws are in this category. Anything like accounting procedures or the road code, for example."

    Hmm, I don't think it's so simple. After all, if something was not in any way wrong, why would we outlaw it? The road code is an easy example - if you break it, you are putting people's lives at risk, and that is certainly immoral. Admittedly, its wrongness is derived from various contingent facts about our conventions, rather than because there's anything intrinsically immoral about driving on either side of the road. But I'm a consequentialist (broadly speaking), so that doesn't matter. The point is, breaking the road code can harm others (i.e. bad consequences), and so is immoral. [Perhaps this is a broader sense of the word than you were expecting. By 'immoral' I simply mean 'that which ought not be done'.]

    I don't know about accounting procedures, but I imagine they're done for some reason, to protect people from economic harm, perhaps? If not, then perhaps such laws should not exist after all. (Remember, the claim is not that everything that's actually illegal is immoral, but rather that everything which SHOULD be illegal is immoral. If it's not immoral, then it shouldn't be illegal either. That's the claim.)

    As I said, I think (1) is the most doubtful claim. But we can't dismiss it quite *that* easily!

    As for (2), I guess I just have different moral intuitions from you. Because it seems obvious to me that gluttony etc are not immoral. (Sloth may be if others depend on you, but then it harms others so is no longer a counterexample here.) Few people take such silly old Christian "sins" seriously these days, and for good reason (what with them being a load of bollocks and all). Vice is the new virtue ;)

    Seriously though, the idea of a "private sphere" where the individual is free to act however they please (again, so long as no-one else is harmed) is a central pillar of liberal thought. So to deny it is a fairly serious claim.

    As for (3), I dealt with that in a previous post. But if you disagree with that post, I'd be interested in hearing your reasons (in which case, it might be best to comment over there, rather than here).

    Thanks for the comment. (P.S. If you want, you could overcome the anonymity of Blogger comments by signing your name at the end of your comment. Or whatever - I don't really mind either way.)

    ReplyDelete
  3. Strange. I was thinking about just the same topic on the way to campus a few hours ago. I haven't got any worked out views on the subject, but briefly consider taxes. I lean libertarian, but I think some sort of minimal state might be necessary. Now suppose that minimal state levies an inconsequential tax on a large number of people in order to provide a nearly universally desired service. It's not clear to me that refusing to pay that tax would be immoral, but perhaps it should be illegal? I'm also curious: why in the world would you think some moral or amoral actions of a purely self-harming variety should be illegal? Do you have a concrete example in mind, or are you unconsciously blending purely self-harming actions (which there may be none of) into almost purely self-harming actions? 

    Posted by Scott Hagaman

    ReplyDelete
  4. Hi Scott, examples might include seatbelt laws, or ones requiring that cyclists wear helmets. My reasons for such paternalistic laws are given in the linked-to liberty & independence post. 

    Posted by Anonymous

    ReplyDelete
  5. Oops, 'Anonymous' was me. 

    Posted by Richard

    ReplyDelete
  6. Hi, Rechard. I was searching the web for fodders of the Issue Part of GRE Analytical Writing when I came across your blog. I find your point quite plausible concerning the scopes of law and morality. But I would like to add some points.

    Things defined as illegal are not necessarily immoral. Sometimes it is just because we cannot regualte certain "undesirable" conducts merely by morality that we have to have recourse to legislation. An apt example would be the prohibition on eating rare wild animals. According to morality, we can hardly say eating wild animals - regrdless of its rarity - is immoral. After all, we human beings are on the top of the food chain - though a bit improper to address this problem just from a biological view. There could be no censure from society on a moral basis if one eats wild animals -even rare ones. Of course, we must preclude the possibility that the animal has no religious or other symbolization or significance. Does this justify the eating of the rare animals? If based on morality only, the answer is obviously yes. Nevertheless, it is often not the case when it comes to eating rare animals in most civilized countries, which is alleged as illegal. Rare wildlife can be of great significance in genetic value and aesthetic value and might be even the symbol of one country (Emu, for example, as Australia's national bird).

    Based on what I have elaborated on above, I maintain that you could make your points more complete if taking into account such probabilities.

    BTW, thanks for your insightful analysis. Now I am much more clear about the issue regarding law and morality.

    PS: I am a sophomore (and will be a junior soon!) majoring in physics in Peking University of China. My blog is llgc.bybk.net
    You might have problems with Chinese characters, I suppose. But that would not block the way of communicating IMO.
    E-mails welcomed to llgc@pku.edu.cn
    I would like to make a friend with you in that I find you may be a good friend and tutor of me in some critical problems.
    Bless~~

    ReplyDelete
  7. Hi Liu, I'm glad you enjoyed the post.

    Why do you think "There could be no censure from society on a moral basis if one eats wild animals -even rare ones"? There might be cultural differences here, but most of the people I know would say that killing endangered animals (e.g. for their fur or ivory) is wrong, and eating them afterwards seems unlikely to improve things. Japanese whaling is widely considered immoral, for example. As you note, endangered species may have both genetic and aesthetic value (besides any intrinsic value they might have in themselves). Like other forms of environmental damage, to kill rare animals is to harm the rest of us by depriving us of that value. And harming people needlessly is wrong. Hence environmental damage generally -- and killing endangered species in particular -- is likewise morally problematic.

    (Killing endangered species might be okay in special circumstances, say if one was starving and desperately needed the food. But usually there are other food sources available!)

    ReplyDelete
  8. Hi, rechard. Now I come to see that there might be some cultural differences here. IMO, eating wild animals might be reproached by the members of some environmental associations, there won't be wide moral censure - although there might be aversion - from the public at least in our country.

    Sould we say that the moral problems ought to be treated on a culture-dependent basis?

    Moreover, I would like to hear your opinion about whether laws are reflection of contemporary morality and whether morality can change over time because of development of technology.

    ReplyDelete
  9. Oops, so many typing errors. Sorry.

    ReplyDelete
  10. I'd agree that one's moral beliefs (like all beliefs) are influenced by their culture. But that leaves open the possibility that there is one universally true answer that everyone is (fallibly) aspiring to. (For instance, I'm inclined to think that anyone who believes that it's okay to kill endangered species is simply mistaken about this particular matter. Note that, as a general rule, it's certainly possible that some particular mistakes might be more widespread in some cultures than others.)

    In your final question, you seem to be talking about "morals" in the sociological sense, i.e. contemporary moral opinions (rather than the moral facts, which presumably don't change). It sounds plausible to suggest that our actual laws often reflect our moral opinions -- after all, why would we outlaw something if we didn't think it was wrong? But I'm more interested in the normative question of what our laws ought to be (rather than what they actually are).

    Developing technology, like any change in context, might affect how fundamental moral principles (e.g. to prevent harm to others) get applied. But I don't see any reason to think it would alter the fundamental principles themselves.

    ReplyDelete
  11. Looking at the history of law and how it has evolved might help to understand the two's relationship. Personally, I would like to see more analysis about the effect of law on morality. I think a lot of the focus has been on how morality shapes law, but I think, especially more and more, the law is effect the morality of people and as a consequence, "poisoning" it as the sometimes back and forth motion of laws and attempts to legislate laws has "confused" people's inner compass. Interesting article though

    ReplyDelete
  12. Hello.

    In my search for finding the difference between laws and morality i came across your arguments, what i percieve as your confusion, and the hot debate on the connection between morality and laws.

    A short note, I am only a Highschool LD Debator and may not understand fully the ideas that you present.

    I seem not to see the connection between law and morality but i cannot put a definate difference between them because as you say, they are of the same coin.

    Laws are simply rules made to ensure the end of a country doesnt come from within. If the self harming ideas you present were not considered immoral, then everyone would do them. When enough of the people died, society would end or the laws put back in place.

    Now the real question is not whether you can connect it but whether or not you can ifnd where they faulter.

    What is morality? Not today, but an application that trancends(cant spell) time and space. Something that is and always will be morality.

    BTw:::FYi:::Its for the Affirmative topic of

    Resolved: Sanctuary Cities are morally justified.

    Response soon is appreciated.

    Americanrebel044@aim.com

    ~Chris

    ReplyDelete
  13. I like your argument that

    "Laws are simply rules made to ensure the end of a country doesn't come from within."

    The second part doesn't make much sense.

    Maybe one could put forward an argument saying that those most effected by the decision are able to have more influence in this manner as opposed to feeling obliged to enforce the will of people who have almost nothing to gain or loose.

    I guess it depends a bit on what tack one thinks the other side will take.

    ReplyDelete
  14. By Aden

    In my view the relationship between laws and moral codes is ultimately a question of moral commonalities. I completely agree that morals are a social construct and would add that they are thereby inherently subjective. One persons moral code is unlikely to be in complete accord with anothers.

    Historically the development of laws in western societies appears to have been strongly influenced by Christianities moral views ( a case in point is that witchcraft is illegal in queensland still, though not enforced).

    I put forth the proposition that religious laws are ultimately based upon moral values and propose that law itself is historically tied to the enforcement of moral values.

    In a world that appears to be steadily moving away from the rule of religion I propose that the link between law and morality needs to widely accepted so that we can develop laws that are in keeping with changing values. I am not saying that the contribution of religious morals to law is invalid but that, if we are indeed moving away from the rule of religion, we need to take into account the history of law and morality and adjust it to remain in keeping with commonalities in moral codes that exists today.

    ReplyDelete

Visitors: check my comments policy first.
Non-Blogger users: If the comment form isn't working for you, email me your comment and I can post it on your behalf. (If your comment is too long, first try breaking it into two parts.)