There’s a particular kind of complaint against particular laws that goes something like this:
I don’t like it when people try to legislate morality.
On the surface this makes a lot of sense, and the person who makes the statement usually comes off as very moderate indeed. “Oh, I agree with you that that’s bad. I just don’t like to legislate morality.” The arguer here is attempting to placate both sides. On the one hand, it allows him to say: “Oh, I really agree with you. I’m not arguing. This is definitely what everyone should do.” On the other hand, it allows him to pretend to keep peace with the other side: “But I don’t see how we can legislate that. We can’t actually enforce morality, can we? If we made a law about that, it would just be silly.”
And so the first, obvious, problem is that it’s an attempt by the arguer to have his cake and eat it, too. He’s trying very hard to please both sides and appear that he agrees with them. Indeed, as mentioned, the goal of anybody making this statement is almost always to appear as the moderate voice of reason.
But there’s a much bigger problem: we legislate morality all the time. Indeed, the vast majority of our legal code is ultimately based on legislating morality.
When you get right down to it, most of our legal code deals with some very basic issues:
- Protecting life and health. Obviously we have laws against murder. But we also have transportation safety laws (seat belt laws, helmet laws, speed limits, etc), workplace safety laws, product safety laws – even environmental laws at the end of the day are there to protect life and health.
- Protecting property rights. Almost the entirety of contract law. Copyright and trademark laws. Real estate laws. Laws against theft, robbery, and squatting. Environmental laws (again).
- Protecting individual liberty rights. Anti-slavery laws. Minimum wage laws. Labor laws and anti-trust laws.
All of this – every bit of it – is nothing more or less than legislating morality. And if you ask random people on the street what the basic functions of government are even the most hardcore libertarians will pick at least a handful of the items on these lists. In other words, everybody agrees that the government should legislate morality.
But that’s not really the issue anyway. When people raise the “I don’t like to legislate morality” argument, what they universally mean is, “I don’t want you to legislate your morality.” They are perfectly fine with legislating some other version of morality. But your morality is inconvenient for them in some way. Even more importantly, this is not a valid dialectical argument. It’s a rhetorical argument, and it’s meant to shut you up and get you to stop arguing and concede whatever point of view the person who plays this card is putting forth.
Don’t let them shut you up. We live in a democracy – one that, as demonstrated above, already legislates morality. If we’re legislating morality anyway then yours is just as good a candidate as anybody else’s. Make them argue for or against your version on the merits rather than trying to pretend in some crazy amoral vision of government that doesn’t exist, never has existed, and never could exist. And don’t fail to point out that if our government truly were amoral, they wouldn’t want to live in it either.