Legislating Morality

Every generation has the task of engaging anew in the arduous search for the right way to order human affairs; this task is never simply completed. Yet every generation must also make its own contribution to establishing convincing structures of freedom and of good, which can help the following generation as a guideline for the proper use of human freedom; hence, always within human limits, they provide a certain guarantee also for the future. In other words: good structures help, but of themselves they are not enough.

Spe Salvi 25

Reflection – OK, maybe this seems a wee bit dry (voice from the peanut gallery: “Like toast!”). Let’s see if we can juice it up a bit.

Same-sex marriage. Abortion. Contraception. Pornography. Divorce. Murder. Law and Order (the concepts, not the TV show).

We cannot legislate morality! What difference does it make if gay people can marry (each other, that is!)? If we outlaw abortion, it will just be driven into the back alley! Divorce laws should be lax and permissive to make it less traumatic and easier for everyone! You cannot force people to be good!

OK, juicy enough? That’s what this rather dry passage from Spe Salvi is alluding to, among a host of other questions. Namely, the place of structures (i.e. laws) in society to shape the public and common understanding of the good use of human freedom. In other words, legislating morality.

Those who claim we cannot legislate morality are talking nonsense, usually about abortion and pornography. Because we do this all the time, and in fact cannot not do it—the very nature of a law is that it is what society determines people ‘ought’ not to do. ‘Ought’ is the key word of morality, right?

Even if we dress our legal theory up in phrases like  ‘preserving public order’ or ‘serving the common good’, we are nonetheless legislating morality. Because of course those are moral ends. Public order and the common good are perceived as what we ought to have, and so laws are passed to punish those who imperil them and protect those who serve them.

What difference does it make if same-sex marriage/pornography/no-fault divorce/ abortion is legal? People will do these things anyhow! Of course. And people commit murders, rob banks, molest children, beat their spouses and domestic partners, defraud others. Why not legalize all these things—criminalizing them hasn’t done any good, apparently!

Law is a teacher, and what it teaches is what behaviors a given society rejects as destructive uses of human freedom for the good, and which ones are morally permissible. By making pornography freely available with almost no limits to it, society says that this is a fine way to present, express, and form people in the nature and meaning of human sexuality. And we all see just how wonderfully well that is working out for us.

By making divorce (legally) easy, society says it doesn’t really matter if married couples stay together or not – no compelling social interest is at stake in protecting the marriage bond. And we all see just how wonderfully that has been working out, too.

By making abortion legal, and by making same-sex marriage legal, society says that the creation of a new human being, human life itself, is an accidental by-product of sexual activity, and possesses no particular value in itself. Human beings are only ‘real’ and ‘valued’ once they attain a level of functionality, and (since gay sex and hetero-sex are precisely identical in law) human beings themselves—every single one of us—are in our very being and origin incidental to some other activity in which we are neither sought, loved, nor considered.

So it does matter what laws we pass, as each law expresses a social value and passes on to the next generation an understanding of the true, the good, and the beautiful in human life.

Now law is a teacher, and every teacher must exercise prudence in her or his pedagogy. For various practical reasons, not every immoral act can be made illegal, and if it cannot be practically made illegal, it should not be. But the law-as-teacher always has the mission and duty of presenting, promoting, and (yes) enforcing those basic human goods which are necessary for a functioning human society.

It cannot ‘force’ people to be good, any more than a teacher can ‘force’ students to learn. But it can and must present the good and the true, and do all in its power to preserve and protect human life, its dignity and its meaning.

And oh yeah, on a related topic, to all you Canadian readers—hope I see some of youse guys at the March for Life in Ottawa on Thursday!