Law and Morality

November 9th, 2009 - by Quincy

Last week a majority of Maine voters chose to preserve traditional marriage. In response, the pro-gay political movement protested that their rights had been violated and published pictures and interviews of disappointed homosexual couples. One common complaint from this movement has been that traditional marriage laws are illegitimate because they are based on majority morals. In a similar vein, two weeks ago I had an extended discussion with a professor of property law—who also happens to be a devotee of law and economics—about zoning laws based on majority morals. Frequently, communities use zoning regulations to exclude bars, distilleries, strip clubs, pornography, public nudity, and other things that the community dislikes for moral reasons. This professor insisted that morality was not a legitimate justification for zoning regulations and that cities should have to justify any laws they enact on non-moral grounds.

Arguments that laws should not be based on morals are persuasive in the United States. Many of the early immigrants to the United States were driven here by religious persecution, and, consequently, the protections for religious freedom written in the First Amendment are among the strongest in the world. History has strengthened this sentiment; state action enforcing a moral code raises the specter of atrocities like the inquisition, the Salem witch trials, and the violent expulsion of the Mormons from the United States in the middle of the nineteenth century. Another complication is that individuals examining a moral code from the outside often judge its practitioners to be irrational or worse. Individuals within a moral code often judge those who don’t abide by it to be deviant or worse. An extreme example of such a clash is the long conflict between western culture and fundamentalist Islam. These sentiments against laws based on morality are misleading because at root all legitimate laws are based on moral judgments.

For many laws, particularly criminal laws, the moral judgment is obvious: murder is bad; stealing is bad; injuring others is bad; and so on. For other laws, the connection to a moral judgment is distant and only becomes evident by asking what the end goal of the law is and then asking why society ought to pursue that goal. The private reasons of legislators and voters for supporting the law are irrelevant; the moral aspect of the law is revealed through the reasons that the public accepts as legitimate arguments.

When I presented this argument in my discussion with the property law professor, he immediately disagreed. “What about,” he asked, “laws designed solely to achieve some economic benefit?” He argued that such laws were not based on morality because they were only intended to promote the production of goods (like televisions, food, cellphones, etc) that have no moral aspect at all. This argument touches on but misapplies an important point. Clearly, an object can be good but it cannot be moral. It makes sense to describe a screwdriver as good, but it is nonsense to say that it is moral. Morality implies will—a trait that screwdrivers lack. So my property law friend was partially correct to claim that the goods that a law seeks to promote may lack a moral aspect. But his argument fails because laws are not simply assertions of fact; laws constrain human action. So, a law designed to achieve an economic benefit is not simply a non-moral judgment that economic benefits are good; it also implies the moral judgment that people should act (and government should force them to act) in ways that produce economic benefits.

Recognizing that all laws are ultimately based on moral judgments has important consequences. It means that objecting to a law because it is based on morality simply doesn’t make sense for the non-anarchist. It also means experts in economics, law, and public policy are not necessarily experts on the legitimacy of laws; experts on the legitimacy of laws are those who have a clear, deep understanding of moral truth. Perhaps most important, recognizing that all laws are ultimately based on moral judgments places moral and immoral individuals on an equal footing when discussing politics.

Political movements are successful only insofar as they appeal to popular moral justifications. Honest politicians do this by explaining the moral justifications they rely on and attempting to persuade others to adopt those justifications. Dishonest politicians hide the moral implications of their political goals and instead present widely accepted but inapplicable moral values. The gay rights movement has used this latter strategy with marked success by injecting the popular moral judgment of equality before the law into the gay marriage debate. See my previous post. The fact that the decision in Maine to deny marriage licenses to gay couples was a moral judgment in no way invalidates that judgment. It simply shows that the majority still rejects homosexuality as immoral, and that it has not fallen for the equal protection ruse.

Before ending I want to clarify two possible misunderstandings that are not directly relevant but could arise from this post. The claim that laws are unavoidably tied to morality does not contradict the existence of natural law, nor does it in any way endorse moral relativism. Moral judgments can be accurate or inaccurate just like any other kind of judgment; natural law is the articulation of accurate moral judgment.

6 Responses to “Law and Morality”

  1. Sean says:

    Your writing is really dense, so I’m never sure if I actually understand what you’ve written about, no matter how many times I re-read it. I suppose that’s an occupational hazard of eduction, the educated end up thinking/writing/speaking in terms which don’t carry meaning for other people.

    Anyhow, I think a lot of the public sense of morality comes from an economic idea. Adultery is immoral because it causes emotional harm to people who didn’t make the decision to commit adultery – e.g. children or a cheated-on spouse. Violence is immoral because the injuries are not born in proportion to responsibility for the fight.

    May laws attempt to internalize externalities – positive or negative. Murder is bad because the cost isn’t born by the murderer. Ditto for most other criminal laws. Other laws try to internalize positive externalities, often by redefining property rights to be commensurate with the benefits/costs the property creates. Intellectual property rights are a good example of this.

    Changes in social values or technology will shift where we perceive harm/benefits to accrue. For example, we may decide that having a daughter marry someone of a different race isn’t such a harm, and miscegeny laws no longer make sense. Or perhaps the internet’s ability spread content makes copyrighted material more valuable, so we need to expand copyright protection.

    In cases where the external harm/benefit is harder to see, some people have tried to show a link between activities traditionally looked at with moral disdain – strip clubs, prostitution, pornography, etc – and a negative externality. The Broken Windows theory is an example of the argument linking immoral activity with a negative externality. I don’t know that a similar argument can be persuasively made about same-sex marriage.

    To the extent morality reflects some sort of harm or benefit, which society is willing to recognize, conferred on an unknowing/unwilling participant, I think it is a good basis for law. To the extent a moral reflects some cost/benefit that society is not willing to recognize, then I don’t think that moral is a good basis for governance.

    More importantly, government gains legitimacy from its people. Since voters have repeatedly passed same-sex marriage prohibitions, it would be exceptionally undemocratic to contravene the people’s will in this matter.

  2. Quincy says:

    Sorry about the dense writing. I’ve been warned about that before, and I do try to avoid it. Clearly I need to try harder.

    I think our disconnect is about the role of economics. You seem to be suggesting that economics reveals morality. I think instead that economic arguments simply link laws to moral justifications. As illustration, notice that each of your examples implies a moral judgment: costs of harm should be born by the party who caused the harm. The normative “should” reveals that the statement is a moral judgment. To me it seems that economics is a tool for achieving desired results, but moral judgments dictate what economics is used to achieve.

    Another way of putting this is to say that judgments about what amounts to a negative externality are always moral judgments.

    I’m curious about your rule that “To the extent morality reflects some sort of harm or benefit, which society is willing to recognize, conferred on an unknowing/unwilling participant, I think it is a good basis for law.” It seems like you are proposing that rights should be defined by majority vote. What limits if any would you propose to limit this?

  3. Elise says:

    “…at root all legitimate laws are based on moral judgments.”

    It seems to me that there should be a definite distinction between universal moral codes and personal moral codes. Since everyone agrees on the right to life, then it follows that laws against taking away that right–murder–are based on the universal moral code. Same with liberty and property (although I realize that most people don’t understand property rights anymore). So, I am going to define universal morality as only pertaining to those three natural rights. Violate those rights, and you have broken the universal moral code.

    When you come to things like infidelity, homosexuality, etc., how can you justify legislating them? If they are not violating someone’s rights, they are not violating the universal moral code. Instead, they are violating personal moral codes–and whether or not those personal moral codes are held by the majority of the population seems irrelevant to me. If laws are based on personal moral codes, how can they be legitimate? It seems that then it is just democratic ruling instead of protecting the rights of the individual.

  4. Quincy says:


    Isn’t popularity the only difference between a “universal moral code” and a “personal moral code”? How would you propose differentiating this from tyranny by the majority?

  5. Elise says:

    I based my “universal moral code” on the three natural rights. Maybe I should’ve skipped that altogether and just said this:

    All laws should only be based on protecting the three natural rights.

    Prohibiting homosexual marriage isn’t based on those, but then, neither is the involvement of Government in the heterosexual marriage.

  6. Quincy says:

    Isn’t your claim that government should protect life, liberty, and property rights simply a statement of your moral view (which I also share) that it is wrong for one individual to deprive another of life, liberty, or property?

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