The summer of 2009 witnessed an unusual standoff between authorities in California and one of the Golden State’s most profitable and popular businesses. The Los Angeles County health department and California’s Division of Occupational Safety and Health encountered resistance in their attempt to investigate an outbreak of sixteen cases of HIV among Southern California’s estimated 1,200 pornographic “performers.” As is the case with many businesses, pornographers—whose industry is estimated to yield twelve billion dollars a year in the state of California—prefer to regulate themselves and attempt to do so through a private institution, in their case, the Adult Industry Medical Healthcare Foundation (AIM). Their interest in remaining as unregulated as they can is rather prosaic and does not require much comment; their goal is to provide the least inhibited “product” possible without attracting the governmental scrutiny that shut down production for a month due to a similar situation in 2004.
The interest from the regulatory agencies of the local and state governments, however, raises some very interesting questions. State officials expressed frustration with the pornography industry’s citation of privacy concerns in rejecting the state’s inquiries about which actors in particular had acquired HIV. The state’s interest was in preventing a health epidemic, and the industry’s reluctance seemed to them obstructionist.
This may seem obvious enough to the common observer. Yet there is a sense in which one might question the rationale for state officials to intervene, given that the industry in question involves the behavior of consenting adults presumably cognizant of the health risks of their profession. Why cannot free citizens, acting by their own lights and under no compulsion, choose to engage in medically risky behavior in order to earn a living? By what right can the public officials of the county of Los Angeles and the state of California seek to restrict this flourishing business, even if it is a curious type of business that combines transactions of a commercial and sexual nature?
What sets off this particular industry from others is the risk of passing on this particular condition and creating a public health epidemic. In this sense, pornographic actors are viewed similarly to nurses and other health workers, whose exposure to contagion is understood to justify governmental oversight. Thus officials from the State of California, relying on the traditionally understood police powers to protect public health, safety, and morals, considered themselves to be rightfully exercising their mandate on behalf of the public.
Even so, what might strike one as odd in the phrase “public health, safety, and morals” is its concluding word. Including “morals” among the reasons for which the state might regulate the behavior of its citizens and their businesses seems today rather quaint. Yet it was not long ago that state officials believed themselves competent not only to judge what was detrimental to the physical health of its citizens but also what corrupted their moral health and well-being. Like the ravages of a physical disease, ordinary citizens and their officials could point to good reasons to think that pornography not only damaged the producers, “actors,” and consumers, but also those with whom they shared their communities.
The authority constituted by the consent of the citizens—the state—was understood to be justified in principle to assist people in protecting themselves and their neighbors from destructive behavior. But what were the reasons or beliefs that informed previous generations’ understanding of human nature and law such that morals legislation was seen as an integral part of the role of government?
The case for morals legislation rests on a conception of the human being as a rational, relational, and moral creature. Hadley Arkes is fond of paraphrasing Samuel Johnson in saying that we are geometricians by accident, but moralists by nature. Like other creatures, we live socially, depending on one another and living communally. But unlike other creatures, human beings use reason to order their lives and interact with one another. Further still, this use of reason is not merely a function of calculation, like that of lab mice learning how to navigate a maze to satisfy their appetites. Such calculation is useful and necessary, even for humans, but human beings go further in our interactions: considering what appetites are appropriate, if these appetites ought to be satisfied and to what extent, and how we should relate to other reasoning beings in going about pursuing a life well lived. In other words, human beings are moral creatures who cooperate to pursue the good life, lived well together.
This truth about human nature is properly described as a basic or self-evident truth, as seen in Thomas Aquinas’s formulation of the first principle of practical reason: good is to be done and evil is to be avoided. “Self-evident,” in this sense, does not mean obvious to all, as many contemporary college students initially think when first confronted with the idea. A self-evident or basic principle is one that does not depend on a more fundamental principle for its validity. When it comes to apprehending a basic truth one either “sees” it, or one does not. If a young student does not understand the transitive principle in mathematics—that if A=B and B=C, then A=C—there is no more fundamental truth that will lead our student to take a further step and understand the principle. The same is true for the notion that human beings are moral creatures who are to pursue good and avoid evil.
To this a skeptic might ask: Does this idea of self-evidence not leave the defender of a normative human nature without resources for putting forth his case? Not in the least. For certain expectations follow if this basic truth about human beings holds true. Though one cannot argue deductively to the first principle of practical reason, one can argue dialectically to find ample evidence of its existence. For instance, we might expect that if human beings were endowed with a moral nature they could not help but appeal to moral norms. If human beings everywhere and at all times have spoken not only with “is” but also with “ought” in their syntax, then that would be a powerful clue as to the sort of creatures they are. And, of course, humans do speak in the language of “ought” as well as “is.”
Why would we propose interference with the architect of genocide in a foreign country, or intervene with an indigenous tribe’s practice of female infanticide? We oppose such practices because we have good reason to know such actions are grievously wrong and thus we are obligated to act where we can. Describing genocide, racial discrimination, and infanticide as morally wrong is a fundamentally different claim than describing them as things which we happen to dislike. To echo Arkes’ formulation in First Things, we understand those acts to be wrong in principle and thus not admitting to degrees of intensity nor of particularity of location or history. If genocide is morally wrong, then a little bit of genocide is not a little bit better; if racial discrimination is wrong in the United States in the 1980s, then it is also wrong in Slovenia in the 2010s. Moreover, we find ourselves repeatedly returning to the discourse of rational moral explanation when challenged by others about our moral judgments. Rational moral creatures offer, demand, and deserve to be offered reasons regarding moral conduct.
There is one more truth about human nature that is as sure as the reality of a moral law. This truth has two sides to it. The first is that human beings are to some extent free creatures, and this freedom has moral implications. Unlike the law of gravity, human beings can break the moral law, and they do. To borrow an example from C.S. Lewis, we blame the man who tries to trip us and does not succeed. We don’t blame the man who accidentally trips us, even though the second may actually harm us and the first has not. Moral approbation requires moral freedom, and we can condemn immoral actions only because we believe, implicitly or explicitly, that human beings have this freedom.
The other side of this truth is that as surely as there is a moral law built in to human nature, there is also a resistance and rebellion against that law and the norms that flow from it. It is crucial to keep alongside our conception of human nature as relational, rational, and moral the competing human dynamic that results in damaged and hurtful relationships, irrationality, and immorality. Only with these truths about human nature in mind can we consider the proper role of law and government engaged in morals legislation.