Monday, December 3, 2012

Myth: You cannot legislate morality

Recently when discussing the relation between law and integrity, I was presented with the argument: "You can't legislative morality." I would like to examine this argument from a logical standpoint, because it merits attention. The myth in the Christian community is it is the church's responsibility to enforce morality, when in reality this is the role of government. 
This is an excerpt from the book by Neil Mammen entitled Jesus Is Involved in Politics (Why aren't you? Why isn't your church?.):
... if we don't legislative morality, what on earth are we legislating? Platitudes? Fuzzy feelings? What? Cultural values? What are our representatives and senators legislating? Traditions? What are they legislating? Well generally, they legislative thinks like, "Rape is against the law." "If you are a child predator, we will put you in prison!" "Killing is against the law" But why do they legislative thinkg like this? Because it's what? It's wrong to kill. It's immoral to kill. We have laws that say things like "stealing is illegal." Isn't stealing a moral issue? In fact, isn't it also a Commandment, as in "Though shalt not steal!"
I vehemently agree with Mammen, when he ardently contends all legislation is some one's idea of morality. He goes on to ask the question whether all laws are based on morality. Yes, they are. The law prohibiting littering is based upon the moral principle that destruction of property that does not belong to you is immoral. Another argument I have heard (recently) is even if you legislate morality, you cannot enforce it. When you take a look at the argument logically, you see it fails. So simply because it is so means it ought to be so? Pro-choice Republicans use the reasoning that women are going to get abortions whether it is illegal or not, so we shouldn't create laws against abortion. Is this a valid argument? Of course not. We may not be able to enforce a law, but that doesn't make it invalid. Mammen points out a very clever point. There's this troubling thing about murder cases - we always seem to get there too late. A law is not invalid if it doesn't keep someone from doing something, and only punishes them when they do it. That isn't closing the door after the horse is already out of the barn; it is the official disapproval and admonishment of an immoral act.
Richard J. Maybury, a libertarian by the title of "juris naturalist", lists in his book several different forms of "encroachment." He says conservatives "want encroachment" in the areas of drug use, pornography, homosexuality, and prostitution. He moves on to commit a logical fallacy by stating this:
... none of this is meant to imply that juris naturalists are in favor of poverty, drug addiction, child pornography or any other evils. It means only that the juris naturalist favors the non-government ways of solving these problems, the voluntary ways, and he is convinced that when government gets involved it only makes things worse. 
The clear fallacy committed by Maybury assumes man is inherently good. His argument assumes people will turn from their immoral acts on their own, or by encouragement. I happen to believe those who produce child pornography should be imprisoned. How does this make the problem worse? The answer is: it doesn't. The 18th amendment to the Constitution is constantly beat over the head of conservatives as an example of how government intervention doesn't help. That is committing the fallacy of a hasty generalization.   You must acknowledge the truth that every person is inherently evil, it is our nature. The government, therefore, has the authority to enforce morality on the people, because that is the role of government. The government should place in prison those who victimize children - this is a form of the government legislating morality, and it being successful. How successful would it be if we legalized this horrible, ribald act? It wouldn't work, that is certain.
Let me wrap up my argument with a few Bible verses pertaining to this topic:
For I know that nothing good dwells in me, that is, in my flesh. For I have the desire to do what is right, but not the ability to carry it out. Romans 7:18 (ESV) (emphasis added)

For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, 4 for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer. Romans 13:3-4 (ESV) (emphasis added)
How much more proof do you require? The Bible says, "For he is ... an avenger who carries out God's wrath on the wrongdoer." You cannot say that verse and the sentence, "You can't legislate morality," in the same breath. Notice, the scripture never limits the government's jurisdiction to offenses of direct encroachment upon a person or his property, as Maybury would argue should be our standard. It merely states the government is God's minister for good. It is the church's responsibility to preach morality, it is the government's responsibility to enforce it.

Now, I am not a bigot. I know there are folks who disagree, because I spoke with one just recently. As President George H. W. Bush said, "I'm conservative, but I'm not a nut about it." Please comment below, and offer a dissenting opinion. I will be glad to discuss this issue, and I respect your point of view.


  1. The problem is that if we legislate morality, then where do we stop? Do we make it a crime punishable by death to look at a woman lustfully (which Jesus define as adultery in the heart, and adultery was punishable by death in the OT)? Plus, if we continue going, we're going to end up requiring church attendance and tithe by law, and that'll (obviously) violate the 1st amendment.

    Without even getting into some of the laws of the OT (not cutting your hair? Killing people with a different religion?) legislating morality is difficult because, even in the church, morality is defined differently. Catholics believe that the Pope is awesome, Protestants don't, etc.

    IMO, the Government's only moral obligation is to provide for the security, civil/criminal courts, and currency for the country. As far as criminal acts go, a victimless crime isn't a crime at all; you have the right to be an idiot and hurt yourself if that's what you want to do. As long as you don't hurt people, do whatever the heck you want.

    1. Let me make a correction - you have equivocated "morality" with "religion." I do not believe we need to legislate religion, but we do need to legislate moral standards. You cited the Old Testament as support for your claim we shouldn't legislate morality, because it provides for strict sentences for certain offenses. I do not contend we should adopt the Old Testament's policy on every issue, but the principle remains the same. I'm actually glad you brought that up because it is another example of how we have legislated morality.

      I assume you believe lust is an offense without a victim, because you obviously believe public policy shouldn't oppose it. However, it does have a victim. The subject of a person's lust is the victim of the offense, because that person's body was violated in a sense. We have laws against sexual harassment, indecent contact, and rape. All of those stem from lust. Do you get the picture? What if we decided not to legislate morality in that area. It would get out of control.

      Many laws in the Old Testament are matters of policy that have little relevance to today's culture (e.g. the law against eating animals that don't "chew the cud") because know things know (e.g. health and safety) that folks didn't know then. So, not all matters of policy are matters of principle. The matters of principle are what is important.

      The government's moral obligation is to protect us from each other. I invite you to provide an example where morality enacted into law does not protect us from each other. I have already addressed your example of lust, and you can use that as a template for any other morally-based offense.

    2. When you legislate moral standards, you get those standards from somewhere (in this case, a religion). You are legislating a religion's moral standards.

      You argue that even without the adoption of the OT's standards, we should adopt the principle of its moral standards. However, we haven't necessarily legislated morality, just common sense in general. Athiests believe we shouldn't kill people, but they don't get that from God (necessarily), they get that from common sense.

      You somewhat started arguing that if we didn't legislate morality in regards to lust, then it would be a slippery slope towards allowing rape, harassment, etc. But, if we went on the other side and actually legislated the Bible's moral standards, then the thought police would have every male in the country under arrest. In the case of rape and harassment, they're not victimless crimes, so you can legislate in regards to them without having to reference a Bible.

      I can agree with you that not all matters of policy are matter of principle, and just the principles are important, but we have to stop somewhere. The principles of common sense should apply, not necessarily the principles of the Bible.

      Lastly, here's a case where morality doesn't protect us from one another: Prohibition. When they legislated that alcohol was morally bad and therefore illegal, it didn't decrease alcohol use or violence. It increased it, because the only way to get it was through violence. To quote H.L. Mencken, a politician from the prohibition era: "Years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished." Allowing consenting adults to use alcohol is a harmful, but victimless, act. Legislating against it caused increased gang violence and abuse, not decreased.

      TL;DR: Small government FTW!

    3. An example of a moral standard is this: human life is intrinsically valuable. An example of a religious rule is this: you must attend church on Sundays. There is a difference. However, I see your point. Caleb, the trouble is if we do not legislate the correct moral standards (Christian standards) then atheists and Muslims will legislate theirs. A recent poll of so-called "American" Muslims revealed that a large portion of Muslims would like Sharia to be the Supreme Law of our land, not the Constitution. We are going to have to choose between the correct moral standards and the incorrect ones, there is no way to keep from legislating either.

      I'm glad we agree on the fact that policy and principle are two separate issues. And yes, I was arguing the PRINCIPLE of the laws against lust should remain. I do not believe our policy should be to arrest every man who has committed lust because I agree with you - every man has stumbled in that area at least once so you are correct as far as that goes, but only as far as that goes. So, I do not believe our policy must reflect harsh consequences for the slightest moral misstep, but I do believe the principle should remain.

      To answer your question of where do we stop, I will give you this answer: The government should stop legislating morality when it has done all it can do to purge society of pathological immoral behavior. We cannot arrest every man who has committed lust, that is unreasonable and all are guilty. However, we can prohibit men from acting upon those thoughts and being disrespectful to women.

      Your example of prohibition is a convincing one, but its conclusion commits a glaring logical fallacy: the fallacy of composition, also known as a hasty generalization. This single example as used as proof that legislating morality doesn't work. However, it is only one example. To be honest, this is the only example I have heard. Also, the analogy between this and other immoral behaviors is different. You can drink alcohol in moderation and be in line with morality. This is not true with pornography, prostitution, or child abuse. Are you suggesting because pornography is rampant we should simply let it go as we did with alcohol? No, because alcohol can be used in moderation. We still have laws against drunk driving, which is a form of prohibition. Alcohol can be used in moderation - and that is allowed. To sum it up, alcohol is a very unique example, and I believe those folks arguing against the legislation of moral principles are making a hasty generalization based upon one example. When you examine other things using the argument of prohibition as a template, it fails.

  2. I just wanted to share this news article with everyone as an example of the state of Texas enforcing a law, that was created as a result of the state legislating morality.

    You can find the article here:

    When you read this article, the theme is clear: failure to act. You see, the couple didn't directly encroach on someone by not reporting the crimes, but they are morally culpable for not taking action when they had the ability to do so. What if the state decided not to legislate morality? After all, they weren't encroaching, they were just silent. I believe it is times like these when we clearly see the government has legislated morality, and it is being used for good.

  3. Caleb, you say the atheist's basis for action is his "common sense". The problem is whose "common sense" is to be codified into law? Common sense is "sound judgment in practical matters" and implies that such judgment is prevalent or generally expected. But what is the basis for that judgment? The basis is different for the Christian than for the Muslim or the atheist. For example, the protection of religious liberty is viewed differently by all three groups. Nevertheless, while our country was designed to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", it was NOT designed to exclude the influence of Christianity. To the contrary, U.S. Founding Father John Adams asserted, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." In the context of the country's founding, Adams was referring to a Judeo-Christian morality. A "government-sanctioned" church was prohibited and, as Adams noted, the perpetuity of morality beyond that codified in the Constitution was left in the hands of the people. Thus, in a democratic republic like ours, the people encode their morality at the ballot box by electing representatives who embody their beliefs. OR by their apathy and neglect, representatives are elected who undermine their beliefs.

    Each law encodes morality. Morality can be legislated, but not fully enforced. People have a choice to make in regard to following the law. However, an orderly society mandates positive and negative sanctions for law breakers and we should by no means give up on that. In fact, apart from anarchy, we are not able to give up on that. We will enact someone's morality, but whose?

    What we are seeing now in the United States with the codifying of same-sex marriage, legalization of marajuana, taxpayer-funded abortion, massive government spending and debt, etc. is a moral problem. It is either a departure from a Judeo-Christian ethic by a majority of U.S. citizens or political negligence on the part of Christians in America. Either way, it is a moral problem. We need to take action, both in articulating and LIVING the Gospel and challenging fellow Christians to be good stewards of their freedom and citizenship.

    1. I especially like your phrase, "Each law encodes morality." After all, what are we encoding if we aren't encoding morality? Neil Mammen made this point in his book. Every law is some one's form of morality, and if it isn't ours then it is going to be that of the atheists, Muslims, or some other twisted world view.
      The Constitution specifically prohibits the oppression of religion, and the so-called "establishment clause" has been blown way out of proportion. Religion has always been integral part of public policy, it is obvious. Let's keep it that way.

  4. This was very interesting to read. I've never really thought much about this topic and am glad TSR brought this up. Also, I enjoyed reading the little debate above. Both had very good points.

    1. Thank you - I believe it is an issue worth discussing.


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