Prof. C. Wolfe
Law and Morality:
What is the Legitimate Scope of Political Power Regarding Issues of “Personal Morality”?
I. Can We “Legislate Morality”?
A. Simple answer: No.
1. Moral virtue has to be free, and so can’t be “imposed”
2. There are limits to what coercion can do (short of a police-state), e.g., Prohibition
B. More nuanced response to a better-phrased question (not “can we legislate morality?” but “can we cultivate the conditions of morality by law?”): Yes.
1. Law, Morality, and Habits
a - laws => fewer acts
note the difference among three classes of people: the “firmly bad”, the “firmly good”, and (more common) those in between
b - fewer acts => reduce causes of bad habits
2. Law and the Formation of Moral Ideals
a - a “sociology of moral convictions”: most people can’t and don’t develop comprehensive moral philosophies themselves - influenced by others
b - laws = one of those sources
e.g., civil rights, homosexual rights movement, sex education
c - question is not whether law (among other factors) will help to shape moral ideals, but how it will do so
“Moralists” (e.g., those attracted by classical political philosophy) can easily be tempted to aim high; but the greatest moralists (e.g., Aristotle, Aquinas) were “moderate moralists”
Aquinas: Q: can and should the law repress all vices? A: no. Why?
1. In general:
a - law is framed for many men, most of whom are not perfectly virtuous
b - they can’t sustain laws aiming too high - and, aiming too high may cause them to disobey and despise the law
2. Any given society has its own mores, which include virtues and vices, and these vices are especially difficult to regulate; attempts to regulate them
a - can lead to despising of the law
b - can lead to excessive government coercion
c - can undermine civic friendship
3. The existence of vices in a society does not mean that they can’t be legislated against at all; some factors that will determine what can be done:
a - how common is the practice
b - can it be regulated partially, or indirectly
c - limited enforcement sometimes best
Issues: abortion, homosexual acts, obscenity (sex, violence); greed or avarice; smoking; obesity (junk food), excessive drinking
Governments at different levels: federal, state, local
Means: criminal prosecution, civil procedures and threat of civil litigation for facilitating acts, prohibition of public benefits or participation in public programs, taxation, education (general and in schools), age limits, time and place restrictions
