“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality.
It is of course true that some laws will be better conceived than others, and many may fail entirely to achieve their purpose. But that they have a purpose, and that the purpose includes at least an implicit moral element, is incontrovertible. One need only ask of any law or action of government, “What is the law for?” The answer at some point will include a conception of what is good for the community in which the law holds. The inversion of the question makes the point even more clearly. What would provide a rationale for a law or governmental action apart from a moral purpose?
The “good” here in question is not merely the product of passing fads or idiosyncratic preferences. When something is wrong, it is not wrong merely because it offends someone’s personal taste. The governing authority’s power to pass and enforce laws takes account of the beastly side of human nature while holding that some wrongs are so fundamental that they demand a robust and coercive response. If there are truly deeds that are gravely morally wrong, then it follows that there must be an authority established to command that such deeds be avoided and to punish the transgressors who commit them.
As Hadley Arkes has argued, if it is wrong to torture other human beings, then we do not content ourselves with mere tax incentives to encourage citizens to stop. We know that the wrong of torture requires that this choice be removed altogether from the domain of what is acceptable. You can enjoy the symphony, a NASCAR race, or the latest offering at the movies, but the logic of morals and law removes the option of torturing your neighbor for your weekend’s entertainment—even if your neighbor annoys you.
Of course, some choices will fall within the discretion of a polity’s citizens. Not every decision has profound moral consequences. But even drawing the line between morally innocent choices and morally culpable choices demonstrates our moral understanding. Abraham Lincoln made this clear in his debates with Stephen Douglas when he noted that Douglas’ professed ambivalence about whether states voted for or against slavery showed that he did not think slavery belonged in that category of actions that are truly morally wrong. If you don’t care which way a state votes on slavery, then you clearly don’t view it as a horrendous moral evil. Rather, you treat it like a state lottery: it is fine if the people want it and vote for it, and it is fine if they don’t.
The logic of morals, then, means that there can be no right to do a wrong. Built into the notion of wrong is the corresponding truth that an authority is right to punish perpetrators of the wrong. The idea that government can act as a neutral arbitrator between competing notions of the good life is ultimately incoherent because the idea itself promotes an underlying conception that this arrangement will lead to the best state of affairs.
It is a historical irony that the most famous attempt to sever the connection between law and morality illustrates the enduring link between the two. This attempt was made by Supreme Court Justice Oliver Wendell Holmes in his 1897 address at the graduation of Boston University Law School, “The Path of the Law.”
Holmes argued that high-minded moral concepts only detract from a clear understanding of what law is and what it should do. Holmes proposed to completely eviscerate moral considerations from our understanding of law. “For my own part,” he said, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” To understand law, Holmes declared, we must adopt the point of view of a “bad man” trying to avoid getting in trouble rather than start off with idealistic concepts of moral improvement and the good life.
Unfortunately for Holmes’ argument, his denial of the link between law and morality can only be made by invoking the language of morals and law. To understand the law, he suggests, is to look at the law as the bad man does. But this raises a question: How, might we ask, are we to truly understand what it means to be a “bad man” and what it means to be a “good one”? Is it not telling that Holmes’s very attempt to expurgate morality from the law itself depends on making a moral distinction? If Holmes is using the terms “good” and “bad” merely as descriptive statements about how some men see themselves (the bad men looking to keep out of trouble, and the good men thinking that they are beholden to some external morality), then he is doing more than attempting to separate morality and law; he seems to be denying morality altogether. Yet he explicitly denied any moral skepticism in his address.
But if Holmes is using the normative words as truly normative, then he cannot help but back himself into the logic of morals by requiring us to make a judgment about good and bad men. That is, he requires us not merely to make moral judgments distinguishing between “goodness” and “badness” (and thus better and worse, right and wrong) but also to associate “badness” with those who do not see a link between morals and law. Whatever his intentions might have been, Holmes winds up illustrating the link between the logic of morals and the logic of law.
To legislate, then, is to legislate morality. One can no more avoid legislating morality than one can speak without syntax. One cannot sever morality from the law. Even partisans of the most spartan libertarian conception of the state would themselves employ state power to enforce their vision of the common good. Given this understanding, the term “morals legislation” is, strictly speaking, redundant. The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.