It is a time of many times: a time for dancing, even if to the songs of a foreign land; a time for walking together, unintimidated when we seem to be a small and beleaguered band; a time for rejoicing in momentary triumphs, and for defiance in momentary defeats; a time for persistence in reasoned argument, never tiring in proposing to the world a more excellent way. ~Richard Neuhaus
Sunday, March 2, 2014
A dialogue for the dance: on the enforcement of moraltiy
I overheard this exchange outside my office last week.
Ned: Yeah, but you can’t legally enforce morality and it’s a
big mistake to try.
Enzo: I disagree. Obviously, it could be a mistake to try to
enforce certain moral rules. Enforcement is costly and sometimes ineffective. I
even agree that sometimes trying to enforce morality with the law creates
problems even greater than the immorality the rules are targeting. So, for
pragmatic reasons, I can see that it could be a mistake to use the law to
enforce certain moral rules. But surely, Ned, the state should enforce the “no
Ned: Well, duh. Murder, though, violates Mill’s harm
principle. Governments don’t enforce it because murder is wrong. They enforce that rule because murder causes harm.
Enzo: Wait a minute. Murder IS wrong, isn’t it?
Enzo: Causing people harm is wrong, right?
Ned: Oh! I see. Sure, if you want to think of it that way,
then fine: Mill’s view would be that moral rules that protect people from harm
are legitimately enforced. But that’s it. Apart from pragmatic reasons, there
are principled reasons not to enforce other parts of morality. It would be
illegitimate for the state to express blame or impose punishments against
people who violate certain moral rules.
Enzo: What are those principled reasons? Because, a moral
rule just is a claim or directive for which there are such strong reasons to
act a certain way that it is legitimate to express blame or impose punishment
against people who don’t comply. We can hold people accountable to moral claims
Ned: Yeah, but not every claim or directive counts as moral
in that sense. The claim has to be verified from the point of view of some
principle – a “critical” principle that determines that the claim has the sort
of standing necessary for it to be legitimately imposed on everyone in the
Enzo: What, like utilitarianism?
Ned: Well maybe. I guess that’s Mill’s view and Hart defends
it in his debate with Devlin.
But many deny that utilitarianism is the right critical principle. Maybe it
isn’t appropriate to hold people accountable to claims and directives that can
be justified in terms of utilitarianism. Many people take themselves to have
decisive reasons to reject utilitarian requirements. And it seems impermissibly
sectarian to hold people accountable to claims that they can’t see the point of
or that are incompatible with their own beliefs, values and commitments.
Imposing utilitarianism on everyone in a society might be just as bad in this
sense as imposing Christianity on everyone in a society.
Enzo: So what’s the principle?
Ned: Public reason liberals, like John Rawls and Charles Larmore
have proposed a kind of public justification principle. The idea is to eschew
sectarianism by requiring that everyone have reasons of their own for endorsing
a coercive rule. It’s a test to determine whether the rule has the necessary
“public” character for the state to legitimately coerce everyone’s
Enzo: You mean everyone has to agree? That’s crazy. It would
mean we could legitimately enforce exactly zero rules.
Ned: No, the principle isn’t that demanding. First, it just requires that everyone have reason to endorse it, not that they
all actually do, consciously and explicitly endorse it. So it could be that all
have reason to endorse a coercive policy, but for one reason or another, not
all of them see that they do. The mere fact that they don’t see it doesn’t make
the rule illegitimate.
Enzo: Oh. But doesn’t anyone who does explicitly disagree
with a rule have reason to reject its legitimacy? Say a proposed rule isn’t
strictly incompatible with someone’s beliefs, values, commitments and the like,
but her values dictate a different rule.
Ned: No. Generally, the fact that a rule doesn’t live up to
her vision of ‘the Good’ isn’t sufficient to show that she has reason to reject
it as unjust. We’re looking for a test of legitimacy – rules that you have
sufficient reason to endorse – and requiring that they precisely match your
personal ideals seems extravagant. In fact, very often the fact that many other
people you have to interact with are observing a rule will be reason enough for
you to observe it, too, even if you would prefer a different rule.
Enzo: So you’re saying that, according to this public
justification principle, to determine whether a claim or directive is
legitimately enforced, we must adopt the point of view of the public, rather
than the point of view of our own personal ideals or some other sectarian
Ned: Bingo! It’s in that sense that the legal enforcement of
morality is wrong-headed. “Moral” rules that don’t pass that test aren’t
Enzo: Huh. But I…
That’s all I heard. Enzo still seemed to want to defend the
Enforcement thesis. I found myself
persuaded by Ned’s Non-enforcement thesis. What about you?
Department of Philosophy
Sacramento State University
H.L.A. Hart, Law, Liberty and Morality (1963).