Suppose
we assume, as conservative Christians and Muslims do, that homosexual activity
is morally wrong. One could believe this, and at the same time oppose sodomy
laws, because it would empower
government to snoop on everyone’s sex lives to make sure people aren’t having
sex with same-sex partners. The question of moral wrongness is not
sufficient to justify the state in intervening and preventing or punishing the
wrongness. It is a feature of freedom that we sometimes have to give people the
right to do what is wrong.
Hence it does not follow from wrongness that there should be a law against it.
14 comments:
There is a difference between what is legal and what is moral. The confusion of the two causes trouble. When teens turn 18 or 21, suddenly new options are open to them legally that still have moral consequences. However, we do legislate morality. The laws define the minimum standard of behavior for living in society. Break certain laws and society punishes you with a fine, others you are separated from society for a time, still others, you get put away for life, or just "put away." However, there is a whole other category of laws that are designed to manage the social structures. We give tax breaks for behaviors we want to encourage and tax the daylights out of things we want to discourage. Moral wrongness is enough to fine litterers or public drunkenness. We can give people freedom to do wrong up to the point where it starts to affect the social well being. When an act is immoral, there is some justification to consider passing a civil law against it. That justification must be weighed against the prospects for enforcing the law, the benefits of enforcement and the cost.
There is also some social benefit to allowing the weight of immorality to be self-enforcing. Suicide may be a gross example. Tragically, drug overdose, gang violence, and even boating without life preservers can all be examples of bad behavior resulting in self enforcing consequences. We draw the line on criminal speeders because they not only endanger themselves but others.
The big lie is that sexual sin is a private matter that has no affect on others. We have lost sight of the damage that sexual sin does to our other relationships and society in general. We wrongly think that what people do in the privacy of their homes has no affect outside the walls. There is good reason to legislate morality. We should renew the practice.
The issue shouldn't be cast in terms of legislating morality. After all, bank robbery is an immoral act, and so laws against that are legislating morality. But enforcing a moral rule requires enabling law enforcement to do the necessary inquiries to enforce the law. And that may be problematic.
It seems to me the principle should be we allow freedom as much as possible, unless and until the negative effect on other people or society is definite and demonstrable.
I think the interesting way to test any act we want to make illegal is to compare the levels of harm against other actions that are allowed or illegal. For example, we allow enormous harm caused by overuse of alcohol, with only a few limitations (e.g. drink-driving) because prohibition didn't work and infringes on freedom too much. So if we have the "best" balance of freedom and law in that case, do other actions we want to make illegal cause as much harm, or not?
An Australian example. Years ago governments removed children from some aboriginal families that were seen as being harmful to the children for various reasons, in the belief that this was in the children's best interest. This is now seen as being excessively harsh and wrong, and governments have apologised for it. So if well-meaning people think other couples (e.g. alcoholic, gay, abusive, poor, etc) should not be allowed to have or keep children, we need to check how the hypothetical harm compares, and whether we would later regret those actions also.
This Blog taking a Libertarian position all of the sudden?
And yet ... "The government has no business in our bedrooms" turned our to have a secret code: "... and our 'bedrooms' are now the public streets."
Not really libertarian. In assessing the legal dimension of an issue, there is the relevant moral question, and then there is the question of whether government activity to correct the moral situation is appropriate, or will do more harm than good.
^ Indeed, that is not the attitude of libertarianism, but of conservatism.
What's so great about freedom? I've never seen any place that actually has it.
^ One has to wonder what you think 'freedom' means.
Is not the north korean free to learn whatever he wants of mathematics? is not the Canadian forbidden from stepping in front of a truck at full speed?
^ One *still* has to wonder what, exactly, you think 'freedom' means.
why?
because
what?
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