There Ought To Be a Law

The temptations of American legalism
Legal and moral concerns converged with disastrous effects during Prohibition (Wordpress).

In this country, political movements to legalize something are usually also social movements to normalize it. The most vocal supporters of drug legalization believe there is nothing immoral about drug use, even if they acknowledge the dangers of addiction (and some don’t even do that), while the most vocal opponents of legalization believe that drug use is both a threat to public health and a moral problem. A similar coincidence of moral and legal views obtains, mutatis mutandis, in the case of what legalizers call sex work and what prohibitionists continue to call prostitution: most of those campaigning to make it legal also believe that no social stigma should attach to either the sex worker or the client, while most who believe that prostitution is immoral can be counted on to believe that it should remain illegal.

This tight alignment between ideas about the law and ideas about morality is a distinctly American phenomenon. Outside of this country, it is not so uncommon to encounter people who do not believe prostitution is always immoral but nevertheless believe it should be prohibited for some other reason, perhaps because of its connection to human trafficking. Nor is it uncommon in other parts of the world to meet people who disapprove of prostitution but do not believe it should be illegal. The very liberal prostitution laws of most Latin American countries are widely accepted there, despite the fact that public disapproval of prostitution remains very high. This circumstance would surely strike many Americans as odd. But why should it? Why is there so little space between our own intuitions about the law and our intuitions about what might be called public morality (as opposed to the purely private, to-each-her-own morality that our public discourse passes over in silence)?

One possible explanation has to do with our cultural and religious pluralism. Law and commerce are perhaps the only two things that all Americans can now safely be assumed to have in common. Some have argued that the United States is today less a nation in the traditional sense than a multi-cultural commercial empire. But social stigmas against things like drug use and prostitution are cultural artifacts and therefore make sense only within the context of a common culture. The values Americans are still assumed to have in common, like equality and freedom, are all readily translatable into a legal idiom: equality before the law, freedom understood as a set of rights. In order to be intelligible to one another, we find it necessary to formulate our moral ideas in purely economic or legal terms—terms of equity, utility, and consent.

Another possible reason for the close alignment between legal and moral ideas has to do with our country’s pre-pluralist roots in Puritanism. To the Puritan mindset, law and morality are really the same thing. Just as the Constitution is the charter for our government, for the Puritan the Decalogue is the charter for all morality, a set of basic prohibitions from which we can derive other, more specific prohibitions. The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets (1648), one of the earliest codes of criminal law in colonial America, begins with this observation:

So soon as God had set up Politicall Government among his people Israel he gave them a body of lawes for judgement both in civil and criminal causes. These mere breif and fundamental principles, yet withall so full and comprehensive as out of them clear deductions were to be drawne to all particular cases in future times.

The same document goes on to claim an equivalence between God’s laws and the laws of properly constituted civil authorities:

That distinction which is put between the Lawes of God and the lawes of men, becomes a snare to many as it is mis-applyed in the ordering of their obedience to civil Authoritie; for when the Authoritie is of God and that in way of an Ordinance Rom. 13. 1. and when the administration of it is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations, surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God, and that in way of an Ordinance which all are to submit unto and that for conscience sake. Rom. 13. 5.

Both progressives and conservatives continue to debate contested social questions with the assumption that whatever is clearly wrong ought to be legally forbidden.

In short, the (divinely revealed) moral law and the “lawes of men” admit of no separation from one another. Whatever is wrong should be publicly forbidden; whatever is not forbidden is morally a matter of indifference. Among the things that were forbidden in seventeenth-century Massachusetts: idleness, swearing, “tippling” for more than half an hour at a time or after nine o’clock in the evening, gambling, wearing lace, or just dressing above one’s station. One could be fined or whipped for lying and banished for heresy. Fornication was punished by fines, corporal punishment, and forced marriage. One could be put to death for acts of bestiality, blasphemy, disobedience to one’s parents, adultery, and, of course, witchcraft. In 1653, a man named Thomas Kemble spent two hours in the stocks for “lewd and unseemly behavior”—kissing his wife on their doorstep. Making matters worse, he did it on a Sunday. (We Catholics have had our own problems with legalism, but there has always been a healthy tension between Catholic canon law and moral theology, along with a less healthy Catholic tolerance of hypocrisy.)

Of course, it would be a mistake to reduce the Puritans’ theology to their sumptuary and Sabbath laws—just ask Marilynne Robinson—but the Puritan way of thinking about morality, as primarily a matter of following rules, and of the law, as primarily a matter of morality, has continued to have a profound effect on our culture wars long after the decline of the theology that underwrote it. Both progressives and conservatives continue to debate contested social questions with the assumption that whatever is clearly wrong ought to be legally forbidden. It follows that whatever is not forbidden is not to be condemned. “It’s a free country,” we like to say—by which we usually mean, “It’s not against the law, so butt out.” This is partly why our culture wars are so often won or lost in the courts.

The repeal of Prohibition may seem like an obvious counterexample to this argument. Americans may still disagree about alcohol, but we all now agree that Prohibition was a mistake, right? Well, not exactly: there are still eighty-three dry counties in the United States. In any case, it isn’t an accident that Prohibition happened here and not in other Western countries, or that it enjoyed a good deal of public support even after its disastrous social effects became evident. Of course, many Americans who do not themselves drink or use drugs also believe it should be legal to do so, but that is because they understand it as a question not of morality but of morally neutral preference. Similarly, there are people who become vegetarians because they believe it is a healthier diet, or because they don’t like the taste of meat. But the militant vegetarian who believes it is wrong to eat other animals, or wrong to raise and slaughter them to be eaten, is also more likely to believe that the issue is not only ethical but political and legal as well.

This tendency is one reason why the controversy over abortion is so much more neuralgic in this country than in most others. We know from public surveys that many Americans who disapprove of abortion don’t think it should be recriminalized. That suggests that this issue is an exception to the pattern I’ve described. But because we are not used to talking about grave evils without recourse to legal categories, people do not have a common language with which to express and defend this apparently awkward pair of convictions. On the one side, it is argued that no one who understood the true enormity of abortion could wish to see it remain legal in any circumstance—after all, it is a grave injustice, and what is the law for if not to redress injustices? On the other side, it is assumed that no one who thinks abortion should be legal would wish to discourage it in any way.

Even the Clintonite formula “safe, legal, and rare” is considered unacceptably squishy by today’s abortion-rights activists. Safe, yes; legal, of course; but why rare? In their view, if it is legal, there is no reason why it should not also be common. In a quarter-century we have gone from “safe, legal, and rare” to “Shout your abortion!” The first was never going to end up on any T-shirts or bumper stickers: it was the product of cagey political triangulation, but it did capture an important nuance. The second is a more authentic expression of the attitude animating contemporary pro-choice activism, and more typically American in its impatience with the tone of tragic necessity.

A single-minded focus on legal and political reforms often simplifies complex social realities and preempts real moral reflection.

The case for criminalizing abortion, because it is a kind of homicide, is in its own way very American; so is the case for celebrating abortion rights as a triumph for women’s equality. We understand these positions easily, even if we do not agree with them. But to say that something should remain legal even though it may be morally worse than some things that should not be legal still strikes many of us as an outlandish paradox.

It is possible, of course, that Americans who are “personally opposed to abortion” but do not support its criminalization are confused about either the moral or the legal argument. My point here is only that there is no necessary contradiction between the two sides of their position, and therefore no reason to doubt either their sincerity or their seriousness. They say they want to live in a society that values and protects the unborn, but they worry about the state using its coercive power to force women to remain pregnant and give birth against their will. This has been roughly President Biden’s position, as I understand it. One may find that way of understanding the issue inadequate (I do), but it is neither incoherent nor “unspeakably craven,” as some have claimed. Even Thomas Aquinas drew a distinction between the morality of abortion and abortion law, teaching that abortion is always wrong but should be illegal only after “quickening”—just as both he and Augustine thought that prostitution, though gravely sinful, should be tolerated by civil authorities. Citing Augustine’s De Ordine, Aquinas argues in the Summa Theologiae that governments “rightly tolerate certain evils, lest certain goods be lost, or certain evils be incurred.” It would be imprudent for civil law to forbid every sin, or even for civil authorities to enforce every law. “Quickening,” we now know, was primitive embryology, and therefore a bad basis for Aquinas’s distinction between abortions that should be permitted and those that shouldn’t. Whatever the limitations of his science, though, it remains significant that he could conceive, even in the case of abortion, of a distinction between what was immoral and what ought to be illegal: the former was a much larger category, and no less important.

One common mistake is to imagine that, even if the law should not concern itself with every moral question, the kinds of moral questions it does concern itself with are the most important ones: the state can afford to overlook our venial sins, as it were, but not our mortal ones. But that, again, is to misconstrue the relationship between morality and the law, which is rightly concerned not with the gravity of immoral actions but with their effect on what Aquinas called “temporal tranquility”—something more than public order but less than perfect justice. Every sentient adult has encountered people who are both perfectly law-abiding and thoroughly vicious, people who have betrayed friends or told damaging lies out of sheer malice. Does this mean we must either criminalize all deceit and betrayal or reconsider our judgment that such people are vicious? Of course not. Does it mean that deceit and betrayal are less damaging than, say, shoplifting? No.

The law is one thing, morality another; they are always related but never the same. The susceptibility of our politics to moral panics, and of our moral commitments to new laws and legal rulings is a regrettable feature of our national life. Yes, some important legal and political reforms in America, such as the abolition of slavery, began as moral movements, but other moral movements, such as Prohibition, went astray precisely by seeking a legal enforcement of virtue. The law is a teacher, as the new integralists are always reminding us, but woe to the society for which it has become the only effective teacher, or the only meaningful test. A single-minded focus on legal and political reforms often simplifies complex social realities and preempts real moral reflection, replacing the full palette of values—of good and bad, better and worse—with the black-and-white of right and wrong or the gray of moral indifference. This tendency flattens our public morality into a deadening binary of what will land you in jail or get you fired, and what won’t. If it won’t, then, to use the current expression, “It’s all good.” But it isn’t all good. There are social evils to which the appropriate response is not primarily legal or political, just as there are political or legal resolutions that do not settle moral questions. Let both the holdovers of the old Moral Majority and the champions of the Great Awokening take note.

Matthew Boudway is senior editor of Commonweal.

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