Tuesday, October 26, 2010

Legislating Morality

Recently Selwyn Duke posted an article here, and this is my little response.

So let's start an analysis of the nature of morality. I ask you: Who or what determines what we call "morality"? I addressed this in "The Nature of Right and Wrong," writing:

[There are only two possibilities:] [e]ither man does or something outside man does. The idea that man determines right and wrong is known as "moral relativism"; this means that morals are relative to the time, place and people. The idea that right and wrong are determined by something outside of man is known as "Absolute Truth."

And, of course, the latter implies God. After all, if we're saying that "Truth" is something existing apart from man, that it is inerrant, and that we must abide by it -- which means it's above man -- what are we actually describing? But, now, what are the implications of relativism? I continued:"

Before the author criticizes the errors of the moderns, he ought to learn the lessons of the medievals first. Aquinas and the later Scholastics, and Hugo Grotious, some of the greatest if not the greatest theologians that ever were, admitted and even insisted that there was natural law and order of things that would be binding even if God did not exist.

"What we have been saying would have a degree of validity even if we should concede that which cannot be conceded without the utmost wickedness, that there is no God." -Hugo Grotius, De Iure Belli ac Pacis (1625):

"[Grotius’s] definition of natural law has nothing revolutionary. When he maintains that natural law is that body of rules which Man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the schoolmen"-D'Entrèves, Natural Law, pp. 51-52.

The rational difference you seek between ice cream and murder is that a prohibition of murder touches upon a far more central aspect of what it is to be human. Society, that social cooperation and division of labor relies upon peace between man and man to operate. Being a social creature is much more important to the nature of man than a seeker of vanilla deserts over chocolate ones, especially considering that most men who have ever lived have not had the opportunity to sample either flavor of ice cream.

There may be reason to admit a god in a purely philosophical sense, of a thing whose essence and existence are one in the same, but there is no ready and reliable proof to any of the Gods of the various revelations. As such taking things purely as a command of God is to at first glance rely upon the opinions of priests and other holy men. This is not a situation conducive to peace and prosperity unless there is a resource to right reasons, to principles and a portion of morality discoverable by man's reason. Otherwise it is just conflicting sets of principles that can never be reconciled by any method than of violence.

The failure does not particularly lie with the average modern. Rather it is the failure of moral leaders of role models to teach and explain natural law and it's role in the human experience. That morality if revealed primarily by reason, and only secondarily by revelation. My belief is that this is not a mere error of knowledge of inexperience, but a deliberate and willful evasion by power hungry men and their apologists in order to escape the consequences and conclusion of this natural law. Of course this has not worked, and the world is swept into further confusion and chaos as these men have their way. The relativism the author criticizes is only a reaction to the effects of these policies. A so-called morality not based in right reason, and firm foundation of human nature ought not be legislated.

And in a way these reactionaries are perfectly correct. Morality cannot be legislated. The act of legislation (factually just making a writ en declaration of an opinion) adds nothing to the natural obligations of morality. At best it may clarify the default where there are several means that can be taken to fulfil this obligation. If a government agent interdicts to prevent a women from being raped, it is no more moral that if anyone without a badge did the same thing. Legislation may, and ought to reflect morality, but if legislation were to require the rape of the woman, the person interdicting would still be taking a moral action.

Another and correct way that the rally of "morality ought not be legislated" is to make a distinction between vice and crime. Notice of authors answers examples by revering to crimes rather than vices. Crimes being those actions that disturb the peace of society, and vices being those actions that create ill results for those who practice them excessively. The later everyman must judge for himself, but the former requires that we must judge for our own safety and that of others.

"In response, libertarians e-mailed me and said that they didn't impose morality, but rather prohibited "force," protected "property rights," or prevented "harm." But unless one objects to governmental use of force to apprehend a murderer or citizens' exercise of self-defense, moral distinctions must be made. Moreover, we couldn't credibly prohibit force, protect property rights, or prevent harm in the first place unless unjustly using the first, violating the second, or causing the third wasn't "wrong." Ergo, morality."

And my last criticism is that the author focuses on the masses of libertarian who lack a through education and background in the philosophy especially as it relates to law and ethics, rather than those who do like Roderick Long, Murray Rothbard, or Lysander Spooner, yet focuses on the work of the best educated and articulate example he can find of the founders. I'm sure that there were plenty of patriots at the time whose thoughts and opinions were far less articulate, systematic, methodical, and researched as those whom we call the founders. A real debate would require a dialogue on these positions instead of or in addition to the more populist versions.

1 comment:

  1. When I took Jurisprudence at a Catholic law school, taught by a Jesuit, I observed that Aquinas took Aristotle's points and made them Catholic in nature. He just restated them with reference to God and the Divine provision of a "natural law." The Jesuit professor agreed with this take.

    I suggest moving from Aquinas into Finnis, "Natural Law and Natural Rights," or HLA Hart, "The Concept of Law."

    Looking at "the Founders" will always yield inconsistent results, because they didn't agree on much. Hence the distinctions between the Articles of Confederation in 1776ish, and the Constitution in 1787, and the later-added Bill of Rights, which was inserted due to the arguments of the anti-Federalists who supported the original Articles of Confederation, which included such Rights. The Federalists ditched those Rights because they wanted the Fed Govt to be a powerful engine of top-down justice ("we know better than you just exactly what you need") with plutocratic power being made concrete. Plutocracy obviously is not the ideal model for individual rights, eh?