“Hullo. We’re talking about law.”

In this delightful sketch from A Bit of Fry & Laurie, Stephen Fry asks whether the qualities of the English language are a function of the characteristics of the English people, or whether those qualities “come extrinsically, extrinsically, from the language itself? It’s a chicken and egg problem.” So today, we’re talking about the chicken-and-egg problem of law and moral consensus.

Greg writes that “Law can’t be legitimate if it’s not grounded in a moral consensus. All law presupposes a moral framework. You can’t ban public nudity without some implied judgment on the moral status of public nudity.” It seems to me that there are (at least) two disparate claims set forth here: a) that law must be grounded in moral consensus, and b) more subtly, that law implies moral judgment.

But the two don’t entail each other necessarily. The legislature can issue laws that reflect society’s moral consensus without passing judgment on whether that consensus is good, i.e., without making a moral judgment. (Of course, we are then presupposing a moral judgment on whether that particular mode of issuing laws is a good one, but I don’t think that’s what Greg is talking about.) On the flip side, the legislature (or monarch, or tyrant, whatever) can issue laws that do imply a moral judgment – i.e., banning public nudity because public nudity is morally bad – but that don’t reflect anyone’s consensus.

But here comes the chicken-and-egg issue, because the law often serves an educative function as well as its commanding one, i.e., people tend to view as wrong something that the law tells them to perceive as wrong. So moral consensus can follow the law as well as it can precede it.

Still, I think that we’re encountering some confusion in the marriage debates in part because we’ve been operating with two different understandings of how law is made in democracy, but without addressing the difference between them. Law can be made to reflect societal consensus without taking a stand on the metaphysical status of the act forbidden or commanded, or it can be made as a mandate to do that which is good or avoid what is bad as determined by moral judgment. And the difference between these two modes of making law doesn’t become clear in cases of societal moral consensus, such as public nudity. In other words, when there is moral consensus, we don’t really know whether the law exists simply because of the legislator’s moral judgment or because the legislator is reflecting a broad societal moral consensus in issuing laws against public nudity.

Rather, we see the difference between these two ways of making law in cases of dissensus, such as we’re finding today with the definition of marriage. Has the state always favored traditional marriage because of societal moral consensus, or because the state/legislator has reflected a (good, in my opinion) moral judgment that traditional family structure is morally good? The answer could be “both,” in the sense described above, since societal consensus might have come in part from the practice of traditional marriage ensconced in the law. Which might be leading to some of the current confusion: “The state can’t legislate morality!” versus “The state has always legislated morality; why should it stop now?” But if the answer is only ‘societal consensus,’ we’re stuck when societal consensus shifts.

Where does this leave us? Minimally, I think it means that we need to figure out what type of government we really have, and I think conservatives have been ambiguous on this in the past. At times we want “pure democracy” in the sense of simple majoritarian rule, which maps onto the idea of reflecting societal moral consensus: i.e., “legislate what we tell you to legislate and stay out of morality. Traditional marriage is good because it’s what the people want.” At other times we want democracy with a moral standard – something that comes “extrinsically, extrinsically” from society itself. In other words, we want Congress to legislate that which is independently good, meaning either good for society or good by a moral standard higher than humans.

But if all democracy is is a reflection or function of society’s moral consensus, there might not be much left for traditional marriage.

12 Thoughts.

  1. I think this is one of the most important points on which I disagree with you and Dan. You think it’s possible for the state to make a law against X without implying a moral judgment against X by the state. I don’t. If it’s not wrong, how do you justify putting people in jail for doing it?

    The state’s moral judgment ought to track the consensus of society, but the state can never be simply a machine or barometer mechanically following social consensus. For one thing, lawmaking is human action and all human action is intrinsically moral. For another thing, we lack a sufficiently precise mechanism for tracking societal consensus in real time. For a third thing, Madison is right to make a distinction between societal consensus in the long term versus in the short term. The short term consensus (“we have no king but Ceasar!”) often violates the long term consensus. In Lockean theory, it is almost the whole function of government to hold people accountable in the short term to their long term moral commitments. This implies the state must exercise independent moral judgment about the short term even if we agree it does not do so about the long term.

    Obviously in some cases legislation requires morally arbitrary decisions. We drive on the right, those crazy English drive on the left; no one pretends this is a moral distinction. However, the act of driving on the proscribed side of the road rather than on the prescribed side of the road is morally culpable, and that’s the only reason it’s possible to justify criminalizing it.

    The distinction I would draw is not between whether a law passes moral judgment and whether it doesn’t, but how far the judgment extends. We do not want the state to answer the question whether marriage is an image of Christ and the church. But we do need the state to judge public nudity as morally wrong.

    • I’ve got a deposition for which I must prepare, but I can’t resist. But only for a moment.

      You’ll find no disagreement from me that law has a moral component. But that’s not the question we ask when we are trying to determine whether the state may legitimately act in a given situation.

      The question is whether state action is necessary to protect against an infringement on someone’s rights. Naturally, you cannot speak of rights in a moral vacuum. That is because a right is not a subjective desire, it is an objective standard, and to be a true standard it must have transcendent moral roots. The transcendent morality is the only reason we can put someone in a cage or the ground for transgressing.

      Greg, however, seems to bridle at this limitation on coercive authority. It appears he wishes the state to intervene when doing so would be good for an individual, or for society. Or, in terms he has used before, if intervention would contribute to human flourishing. Talk about a place where scary things live! I would flee any country, or seek the overthrow of its government, that asserts a right to legislate on that basis.

      When a government is acting to protect someone’s rights, it should do so in a way it believes will contribute to human flourishing. But that statement does not work in reverse. That is to say, simply because the state is acting in a way it believes will contribute to human flourishing does not mean it is protecting someone’s rights. And if it’s not protecting rights, it may not act.

  2. Well, I think the putative answer is that you justify putting people in jail for something because it’s what society wants. I agree with your important qualifications, though – consensus in the long- versus short- terms, lack of a mechanism for accurately measuring moral consensus.

    What I want to point out, though, is that as Americans we don’t have a consensus on the role of societal consensus versus state moral judgment, which leads to confusion. I actually agree with you – and didn’t at all make this clear; in fact, I just stand corrected on it – that there’s no such thing as amoral judgment. The state, and the people acting as the state (meaning, e.g., members of Congress), IS always using some sense of morality; we can’t pretend that they are acting purely as mechanisms of current moral consensus.

    But as a society we’re confused, or in disagreement at least, on the extent to which that SHOULD be the case. Does the state have to make moral judgments only because we don’t have a sufficient mechanism for measuring moral consensus? If that’s the case, we need more opinion polls. (I see all kinds of problems with this, of course, beginning with the fact that “opinion” is not the same thing as a studied or firmly held conviction on a moral matter, but it’s where this line of reasoning seems to go.) Or is the case that regardless of how well we can measure public moral beliefs and consensus, the state has a responsibility to make independent moral decisions?

    In other words, Rawlsian liberal democracy isn’t realizable, I agree. But so many people – including many conservatives – seem to think that it’s ideal nonetheless; it’s just a matter of feasibility. That said, if Rawls is off the table as undesirable regardless of feasibility, then we have two loci of moral consensus at issue: public/societal and state. And we can’t pretend that the latter follows the former perfectly because we’ve just said that that’s not desirable. But enforcing moral consensus of the state seems, well, worrisome. Back to the MC Hammer, perhaps.

    • “Because it’s what society wants” is not a legitimate reason to put a man in a cage – or in the ground. Don’t go in that dark alley; bad things live in there.

      • Right – but I agree with that. I’m wondering, though, what ARE the grounds we’re looking for?

      • I wondered. You did say “putative” but your next sentence left me with the impression you were really using that as your starting point.

        Your question is too big to answer in a comment, but I think the starting point of an answer is that the state is suborinate to the long-term moral judgment of the community (institutionalized in the constitution and the other basic structures of society) and therefore must have the ability to exercise moral judgment independent of the short-term desires of individuals, factions, organizations, and other particular actors. The state’s exercise of moral judgment takes nothing away from the superior moral authority of the community; to the contrary, it is only by exercising moral judgment that the state can have any hope of remaining a faithful servant of the community’s long-term moral consensus in the face of numerous and powerful forces clamoring for its favoritism in the short term.

      • Perhaps the answer to my next question is what you’re referring to as too big for a blog, which is fair. But my concern is this: clearly (and we are in agreement about this), the vox populi isn’t sufficient grounds for just any action; there is a moral content to state action that requires more than the will of the people at any given moment. Also, the will of the people must be understood as extended over time. Agreed. But a) on what grounds, or using what standard, does the state then act against popular opinion – meaning, if a senator says “this may reflect current popular opinion, but for the sake of the will of the people over the long-term, I will act against it,” by what means does he know what the long-term interests of the people are, and b) what if the long-term will of the people is bad nevertheless? It’s not clear to me that consensus will indeed ever shift back to traditional marriage. It’s at least a possibility that it won’t. Should the state then acquiesce and give us the democracy we deserve?

  3. Karen states, “Minimally, I think it means that we need to figure out what type of government we really have …” I will respond through a series of bifurcations in an effort to “figure out” an answer.

    First, it is instructive to consider the difference between the government we have and the government our Founders intended us to have. The government we have is increasingly centralized, distant, and out-of-touch; increasingly convinced that it may do anything it can do, regardless of any Constitutional provision to the contrary; increasingly convinced that it, and only it, is the answer to every question and the solution to every problem; increasingly willing to sacrifice entire segments of the population in order to create a permanent underclass ever more willing to vote to keep its “benefactors” in power. It is seemingly inexorably moving toward the national government so abhorred by many, though not all (Alexander Hamilton the most notable exception), of the Founders. It now directly touches every person in almost every facet of each person’s life. It is Leviathan. The government we were intended to have was to have been one federal in nature; a government of both horizontal (legislative, executive, and judicial) and vertical (local, state, and national) checks-and-balances; one in which the national government would rest so lightly on the shoulders of the vast majority of citizens that most would not even know it was there; one whose primary mission was to protect the country from outside threats, the states from each other, and everyone from itself. The government we were intended to have disappeared in the smoke and thunder of the Civil War, and in the hands of a President who, without sanction, re-wrote the Constitution in an effort he claimed was intended to save it.

    Second, we need to again consider, and state for the record, the purpose of government. Current liberal ideology considers and promotes the purpose of government as being the provision of all the needs and wants of its citizens (but only as defined by the government), providing bread and circuses for their edification, and dedicated to the proposition that the citizenry exists to serve the needs and wants of the government. Instead, the proper purpose of government, as forcefully expressed by John Locke and Frederic Bastiat, and memorably restated by Thomas Jefferson, is to preserve, protect, and defend the life, liberty, and property of its citizens. Our government, as it currently exists and is administered, fails on all three counts: it permits the outright murder of the most vulnerable among us; curtails our liberty in the name of making us “safer;” and seizes our property for purposes not sanctioned by our Constitution.

    How, then, do we return our government to its proper role and function?

    First, evaluate every government program, department, and agency to determine whether it preserves, protects, and defends the lives, liberties, and properties of its citizens. The evaluation cannot be so shallow as to stretch every program, department, and agency to fit the criteria. It is not enough to say that it could, it must be capable of demonstration that it does meet the criteria in an active and positive way.

    Second, evaluate every rule, regulation, and law against the same criteria. Any law, rule, or regulation that does not preserve the life, protect the liberty, or defend the property of its citizens should be rescinded, repealed, and rejected. Any proposed law, rule, or regulation should be evaluated against the stated standards, and rejected outright if it fails the criteria.

    Third, and finally (no smirking, please), in every case ask, “Whose life will be threatened and undefended without this?,” “Which liberty will be impinged without this?,” and “Whose property will be in jeopardy without this?” When we can factually say that there no longer exists any government department, agency, or program that does not meet the criteria proposed, when we also can say that no law, rule, or regulation exists that also does not meet the criteria proposed, then we will be able to say truthfully that we have returned our country and its government to the form intended by the Founders.

  4. Isn’t “morality” by definition concerned with popularity of social ‘mores?’ This discussion is interesting, but I’m still struggling with how it answers the question of gay marriage. Two consenting adults, it the privacy of their home, engage in homosexual behavior, using their constitutionally given right of freedom. And yet, we conservatives would argue that it is morally wrong behavior and should be prohibited by the government. The argument is whether the government should make a ‘moral’ declaration that homosexual marriage is wrong, either implicitly or explicitly. While I understand the above argument about morality and Law, how does this apply to sexual deviancy? Does the government, by making a ‘moral’ declaration concerning gay marriage become a sex police?

    • We need to distinguish between whether the criminal law punishes gay sex and whether the civil law recognizes gay marriage. In fact, I don’t think many people (there are some) are actually proposing a return to criminalizing sodomy. That distinction doesn’t get made in your comment here.

      The discussion we’re having gets to gay marriage because having the civil law recognize gay marriage embeds in our law a moral message – not just about gayness, but (more importantly) about marriage. The main problem with legally recognizing gay marriage is not that it conveys society’s moral approval of gayness (although it does that, and that’s a problem) but that it conveys society’s opinion that marriage should become whatever our sexual desires want it to be.

  5. Except in contradistinction, I think that “morality” cannot be concerned at all with the popularity of social “mores.” The moral is defined by God and not by man, and makes the claim that it is universally true for everyone, everywhere, and throughout time. Mores are ephemeral, and change like fashions with each change in season.

    Morality is above, or if you prefer outside of, culture; mores both define and are defined by it.

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