OT: Morals and Legislation

Whistle
1

Here’s a link to an article from today’s Wapo. The article is entitled “Undermining Society’s Morals” and it draws upon a recent Massachusetts court decision:

http://www.washingtonpost.com/wp-dyn/articles/A17611-2003Nov27.html

I should say right up front that my primary interest is not in the particular issues the author mentions so much as in the general proposition he’s concerned with:

The more destructive impact of the decision for society is the court’s insidious denial of morality itself as a rational basis for legislation.

He goes on to make the point that virtually all legislation has a moral basis and to decry the results of denying this obvious truth.

Clearly, establishing that moral preferences are virtually always a major motivating factor behind the actions of organized societies does not end any debate, but it does seem to be a useful starting point.

2

You might enjoy an earlier thread on a related issue: OT:
Editorial in Village Voice
about Gay Marriage.
The whole thread is interesting,
I think,
if you haven’t seen it already.

3

I think the writer of that article got everything completely backwards. A shining example that the Enlightenment doesn’t seem to have quite happened in the USA. I didn’t know whether I should laugh or cry when he suggested that legislators should be motivated by morality because the Constitution forbids the establishment of a state religion.

The question itself, how do laws and morality relate? is a very interesting and old one. The discussion is sometimes difficult, though, because the terms get easily confused. In philosophy, the typical use is that “morality” means a system of values derived from human aspiration or vision; it is “internal” if you will. “Ethics” would mean a code of behavior based on human interaction, and would “external.” Moral, ethical and legal statements are value judgements, or norms: saying that something “should” be. Interestingly, most Americans (or perhaps only American lawyers) think that laws are “facts.”

A moral statement: “Strive for perfection in yourself, and happiness in others” (that’s from Kant, and it’s no coincidence that he comes to mind.)
An ethical statement: “Don’t exploit a common good for your own short-term gain at the expense of long-term public welfare.”
A legal statemen: “Don’t exceed the speed limit on pains of fines or suspension of your licence.”

I don’t think the writer is clear about these distinctions (or any distinctions) and is expressing a vague feeling of irritation and concern rather than actually saying anything intelligible about the role of morals/ethics and the legislature and the courts in a democracy (oh, pardon, in a “republican society”).

4

Two quibbles, if I may.
Bloomie wrote:

“republican society”

Did you really mean “Republican society”?

Bloomie wrote:

The discussion is sometimes difficult, though, because the terms get easily confused. In philosophy, the typical use is that “morality” means a system of values derived from human aspiration or vision; it is “internal” if you will. “Ethics” would mean a code of behavior based on human interaction, and would “external.” Moral, ethical and legal statements are value judgements, or norms: saying that something “should” be.

Now I’m curious–what’s “philosophy”? :confused:

And a comment.
Bloomie wrote:

A shining example that the Enlightenment doesn’t seem to have quite happened in the USA.

We should have been so lucky! :smiley:

5

Sounds great.

An ethical statement: “Don’t exploit a common good for your own short-term gain at the expense of long-term public welfare.”

Why shouldn’t I, Bloomy. Who are you to say that the public welfare matters more than my own.

A legal statemen: “Don’t exceed the speed limit on pains of fines or suspension of your licence.”

So, why should I care about the law or it’s repurcusions?

Sorry, man. You can’t separate them out like that. It works in fictional works of philosophy, but not in logic class or real life.

Erik

6

My personal morality is the best morality, God told me so, that’s why we should base laws on it. And everybody who has a different morality than me is a sinner, a downright nasty person, needs prayed for, and deserves to go straight to Hell.


P.S. God votes Republican.

7

Cranberry, you’re back!

8

Perhaps it is the fact that you have seen the Glory of the Lord that inhibts your ability to distinguish between a statement (“Go wash the car!”) and the reason for the statement (“Or else, I’ll tan your hide with this here riding crop”). :wink: If you’ll take it on faith for a moment that the distinction is possible, you’ll see that it’s actually quite useful. The reason for the statement I just gave as an example, could also be “or you won’t get as good a price in selling it.” Or perhaps “for if you do, I’ll give you five bucks.” Query: How is the statement “Go wash the car!” affected by the reasons that are (or could be) given for it.

Watch me. :slight_smile:

9

I guess I would second Erik’s sentiments:

Bloomie wrote:

…“morality” means a system of values derived from human aspiration or vision; it is “internal” if you will. “Ethics” would mean a code of behavior based on human interaction, and would “external.”

Granted that this might be a logical distinction, it seems to be a rather unuseful one. After all, wouldn’t our code of behavior (“Ethics”) be drawn from or based upon our system of values derived from human aspiration or vision (“morality”)? Be, in effect, an “externalization” or “implementation” of our moral vision (adopting this terminology for the sake of the argument)? I think a good argument could be made that that has been, rather persistently, the actual case throughout human history. And if that be so, we find ourselves, for practical purposes, back in the position of legislating “morality.”

Or perhaps I’ve misunderstood. Perhaps “a code of behavior based on human interaction” is intended to signify a sort of pragmatic modus vivendi arrived at by trial and error. I would argue that that view doesn’t conform to human reality and so should not serve as a definition of a particular aspect of human reality. Nor does “a system of values derived from human aspiration or vision” remind me of any human experiences that I’m familiar with. I would have thought that a system of values would flow from some sort of rational enquiry into human nature, thus leading one to aspire to that view of what a human is or can be. At any rate, that’s been my experience, and I suspect that of most people.

10

Unfortunately you’ve used an amoral directive to prove the case for a moral imperative.

If there were a law that said, “You must wash your car on Tuesdays.” All of us would wonder why and not just leave it at “Go wash your car.” We would demand the answer that would verify the imperative of washing cars on Tuesdays. If one does not exist, a group would rise up to undo this superfluous law.

If there was a reason that gave true imperative, ie “Wash your cars only on Tuesdays so that you and your neighbor can drink on Friday” we have now passed into the moral imperative whereby I can judge the rightness of the law based upon its implication. And less people would object to the restriction of a ‘freedom’ by due process.

Erik

11

(This is in response to Elendil’s post; Eric sneaked on in there. Eric: see below for the outline of the same thing with “Thou shalt not kill.”)

Let me put it this way: Americans are spoiled. Spoiled by over two hundred years of relatively stable and pleasant government and democracy. While it is fashionable to bedevil “those in Washington”, nobody here is really worried about those in government, in the courts, or in the legislature being openly motivated by moral or religious convictions. God says “thou shalt not kill” and Hobbes says that the state may and should tell its citizens not to kill, because it make an orderly life impossible. Why we therefore prohibit homicide doesn’t really require further thought (is unuseful, in Elendil words). It is not felt to be an issue that requires thinking about.

But in the past and in different places societies have exists, and I daresay do exist, in which the people feel that the government is trying to tell them what and how to think. They resent that. The would say: “You, the state, can tell us what to do, and even make us pay taxes, but you cannot tell us what to believe and what to think. That is none of your business, that is not what you are there for.”

If that is the fundamental approach to the state, the problem what the state may do, and what reasons it may cite in doing so becomes important. And such a society may feel, for example, that “God told us so” is not the right reason for a state to forbid homicide. They demand a reason for actions of the state, for the laws; a reason that derives from the function of the state.

The function of the state is to permit an orderly and healthy life and community of the citizens. It is not (in the modern state) to goad citizens toward saintlihood or a religious life. So let the state give us for every law, for every act of the state a reason to show that the law or goverment action is necessary for the order and the welfare of society. Don’t give us reasons about what is good for us in a moral or religious sense; if for no other reason that we can’t agree on it.

If you look at it this way, the outrage of author of the Wapo article that the Mass court objected to the state imposing “a comprehensive system of morality by its laws” (or whatever it wasy, I am quoting from memory) become a lot less understandable.

(nothing like a convoluted sentence to end a post like this with. :slight_smile: )

12

Perhaps I should state how I understand and define things. I believe that Law, Ethics and Morality are all statements of what we VALUE. If you wish to break them apart beneath the moniker of Value, I don’t really have an issue with it, but to deny that different people and different cultures value different things (which are then reflected in their laws, ethics and morality) is to bury your head in the sand.

(I haven’t thought about the following statement deeply - I could simply be wrong :slight_smile: ) I would, perhaps, even replace the word Value with Morality and make the case that Law and Ethics are simply the reflection of corporate Morality. But for now, lets say that Law and Ethics are the outgrowth of corporate Values and Morality is that of individual Values. (I do believe that there are absolute Values that transcend cultures, but you’ll notice that my definition does not require this to stand).

Thinking while writing,
Erik

13

If I’ve given the impression that I deny that different people and different cultures value different things, I retract.

14

Boy, I should also say that I haven’t read the article and am not defending its position. I’m simply responding to the idea that law can exist without morality.

It is impossible to determine what orderly and healthy is without a sense of Value. Afterall, I should be king… that would be the most orderly and healthy existence for my subjects here in America. But apparently, others don’t agree with my Values.

15

In philosophy, the typical use is that “morality” means a system of values derived from human aspiration or vision; it is “internal” if you will. “Ethics” would mean a code of behavior based on human interaction, and would “external.”

Honestly, Bloomie, I’ve never seen this distinction before.
Websters defines ‘morality’: ‘principles of right and wrong in
conduct; ethics.’ This is the sort of thing I’ve seen:
‘morality’ and ‘ethics’ tend to be used interchangeably.
I do think it’s helpful to take the article to be
using the terms in this dictionary sense.

16

I’m getting the feeling the we’re dancing around agreement and posts, Bloomy, but I still have a contention here. Whether we define it at the beginning of the argument or the end, it will all boil down to what we Value. WHY should a person HAVE an orderly life? WHY are we entitled to that? Why doesn’t one person have more value than another? Why is someone’s life Valuable?

I know that different folks are going to have different answers to these ultimate questions (and frankly I don’t begrudge different answers) but it will be how we answer them as a society that will drive both our legal system and interpersonal relationships. Utilitarianism just doesn’t have the answers.

Erik

17

Here’s a bit of the article, relevant to Bloomie’s objections to it:

'In reality, legislatures discharge their moral mandates all the time, and not just in controversial areas such as abortion, gay rights, pornography and the like.

Animal rights, protection of endangered species, many zoning laws and a great deal of environmental protection – especially wilderness conservation – are based on moral imperatives (as well as related aesthetic preferences). Though utilitarian arguments can be offered to salvage these kinds of laws, those arguments in truth amount to mere rationalizations.’

The article also says that we have gone to war for
reasons of morality. I suppose one might consider
the slavery issue in this context.

18

So what you’re saying, Jim, is that I should read the article so that I don’t bore those of you that did :laughing:

19

Bloomie wrote:

Let me put it this way: Americans are spoiled. Spoiled by over two hundred years of relatively stable and pleasant government and democracy.

I can agree that we, as a country, have been very fortunate compared to (even) more turbulent parts of the world–OK, almost everywhere else–but that still seems an extreme statement of the case. Yes, lack of recent foreign invasions or attacks (9/11 excepted) makes us somewhat unusual among nations, but I would still argue that our history has been far more turbulent than your statement allows for.

Bloomie wrote:

God says “thou shalt not kill” and Hobbes says that the state may and should tell its citizens not to kill, because it make an orderly life impossible. Why we therefore prohibit homicide doesn’t really require further thought (is unuseful, in Elendil words). It is not felt to be an issue that requires thinking about.

Several points:

  1. We don’t live in a Hobbesian state.
  2. In any event, the Hobbesian preference for order is a moral preference. Compare it, if you will, to warrior peoples who have a, yes, moral preference for a life of rape, pillage and murder.
  3. The prohibition on homicide does require further thought. For some years there has been a great national debate on abortion which has figured prominently in public events like elections and hearings on judicial nominations. The issue also comes up in legal areas like wrongful death actions. The abortion issue has, in actual fact, caused debate over the meaning of homicide. There are many more examples of re-questioning of basic moral issues from our turbulent history. :slight_smile: We have therefore not reached a Hobbesian End of Moral Enquiry. Moral Enquiry continues and is useful.

Bloomie wrote:

If you look at it this way, the outrage of author of the Wapo article that the Mass court objected to the state imposing “a comprehensive system of morality by its laws” (or whatever it wasy, I am quoting from memory) become a lot less understandable.

Say whaaat? :confused:

Oh, and my “what is ‘philosophy’” question wasn’t meant to be flip. I could tell from your definitions that we probably have rather different views on that word. For myself, I find it a largely “unuseful” word–one that had a meaning and significance when coined but now tends to obscure fundamental issues.

20

I was reading from an article, today, in a political opinion journal, which seemed to assume that persons of strong religious conviction pose a threat to society and freedom, when placed in public office. Yet, I hold that fundamental natural rights are the cherished backbone of our democracy, and not the great threat to it that some suppose.

The notion of rights is usually at the forefront of American poitical philosophy discussions. Persons on various sides of an issue, generally proclaim that they are preserving rights, but some sense of values must undergird even a basic idea of rights. We have enumerated some of these basic rights, in our foundational documents. We have seen these rights successfully, and many times, not so successfully respected in the history of the United States, but inalienable rights must be respected.