In Defense of Legal Moralism
Particularly avid readers of The Exonian may have noted that last week, I wrote an opinion piece calling for a ban on tobacco sales. In it, I argue that a ban on tobacco would be both a just and effective method to combat an addiction that kills seven million each year. I ended, however, by noting that “even if I was wrong, even if a ban were to be entirely ineffective, an utter waste of time, we could at least say we took a stance.” Apparently, this statement became fodder for a few interesting discussions with friends this week. I have had the pleasure of debating some who argued that, because a ban on tobacco sales reduces liberty, there would be little reason to implement such a ban if it did not produce results. Needless to say, I am not of such an opinion, but the discussions have been an interesting microcosm for exploring a controversial legal ideology—moralism.
The moralists, in short, contend that the law exists primarily to codify moral truths. Thus, the state is entirely within its right to “legislate morality”—that, in fact, is one of its primary purposes. It is worth noting, however, that most moralists are willing to balance that belief against practical concerns, insofar as they do not typically support the implementation of laws that would have tremendously adverse effects, even if they codify moral truths. For instance, I do not support a prohibition on drug (or tobacco) consumption, even if it were to be considered immoral: drug control policies that punish users tend to further degrade the mental and physical health of addicts, an evil that outweighs the good of any moral statement made. It is further worth noting that I consider any culpability one bears for drug use to be at least very often diminished by the circumstances of addiction, though this is a separate debate.
Opponents of legal moralism, often termed legal realists, look at such an arrangement and laugh. To them, laws are made out of primarily practical interests. Recall that many legal moralists claim that the law arises to protect people’s freedoms. Thus, attempts to “legislate morality” aren’t in themselves—laws become helpful when they have positive effects. While the moralist would say we ban murder because it is wrong, the realist would respond that we ban murder because if we didn’t, chaos would break out.
The claim of the realists is certainly compelling—on quite a few hot button issues, we have a tendency to lash out against those who seek to “legislate morality.” But is this really a bad thing? I’d say that there seems to be a bit of dishonesty in the legalist argument on murder, for instance. We ban murder because we think it just to punish those who would do such an evil. When we advocate for jailing human traffickers, it is less out of practical concern for preventing human trafficking (though the moralist concedes that such concerns exist and are highly relevant)—we simply want human traffickers to be punished because they did something abhorrent. So it is with tobacco, I argue. So long as banning tobacco sales wouldn’t have a negative effect, we should still do it because business models predicated off the sale of a lethal addictive substance are fundamentally abhorrent. If justice has at least an aspect of retribution involved, then it makes sense that our laws exist at least in significant part to reprimand evil.
Thus, when I say that “even if a ban were to be entirely ineffective, an utter waste of time, we could at least say we took a stance,” I mean to say a couple things: (a) that the government is absolutely in the right to make such a law, even if it does not yield a good effect, and (b) presuming it does not yield a bad effect, the government should still pursue it, because it would punish fundamentally and gravely wrong actions. If we believe that the government should punish wrongs, and if we believe that the sale of tobacco is wrong, then we ought to conclude that it should ban tobacco—we should use our laws to take a societal stand and punish those who profit off of others’ deaths.
This is not to say that the realists’ claims are entirely invalid: we should pay attention to the effects of a law when we write it and should be careful to avoid causing more problems in the process of standing against wrong. But caring about consequences does not make the intent of a law irrelevant in my estimation. I’d actually be quite interested in hearing a response, both in this newspaper’s opinion section and beyond—why shouldn’t we legislate morality? Why is the government out of place to ban things simply because they are wrong? We would seem to do it all the time, but should we?