A terrible argument: "The government should not legislate morality"

No one really believes this. No one is out there saying that rape should be permissible, because "the government shouldn't legislate morality."

What the person making this argument usually really means is that in the area under discussion (typically something like sex, drugs, gambling, etc.) that person believes that government regulation should have little or no role. That is fine, and perhaps they are right. But make that argument, and not the silly one in the title of this post.


  1. Glad to see someone else mention this. It's one of my pet peeves.

    To legislate, is to legislate morality.

    When you prohibit something, you're saying it's bad.

    When you require something, you're saying it's good.

    When you tax people or appropriate funds for X, you are saying that X is something good that needs to be paid for.

    To me, the "minarchist libertarian" proposition is that government should limit itself to legislating pursuant to one particular moral constraint -- the non-aggression principle. That's legislating a particular morality, as opposed to another particular morality, or some larger set of moral claims.

    1. Hi Tom. Welcome back. I'll try not to mention smart phones for a while!

    2. Gene, are you endorsing Knappster's elaboration of your argument?

  2. Heh. I made such a claim once when I started calling myself a libertarian and my liberal friend pointed out this problem. Too many liberals and libertarians fall for this line of thinking. I've even seen conservatives make the claim.

  3. Hi Dr. Callahan, I don't think the point is as simple as you're trying to make it.

    Let's classify two types of immoral acts. 1) nonaggressive acts (e.g.prostitution and buying/selling/using drugs) and 2) aggressive acts (e.g. theft, murder, and rape).

    I am against legislating morality in the former situation because it eliminates the possibility for whoever force is being used against to act morally. This is because without choice, moral duties have no meaning.

    As an example of the latter situation, however, let's say A is aggressing against B. For the time being, A has the possibility to act morally (but is not exercising it) but is removing the possibility of B to act morally. If self-defense (or defense by third parties, such as government legislation/force) were to be used on behalf of B, it would flip the situation around. A would no longer have the option to act morally, but B would. Either way, one person is losing an opportunity to act morally.

    As such, the libertarian who is against legislating morality can be "for it" in the latter case without being inconsistent.


    1. Bharat, I was not addressing the position you outline, and did not claim it is inconsistent. But I will note that threatening someone with force does NOT eliminate the possibility of them acting morally. Indeed, some of our moral paragons were at their best when threatened with force!

    2. Re: Bharat's point:

      Gene, when you say "threatening someone with force does NOT eliminate the possibility of them acting morally" -- that depends on which moral theory is correct, no? IIRC, to at least some Kantians (and Kant himself?) & other deontologists, the sole factor which determines whether an act is moral is whether the moral agent is motivated purely by good will. If your actions are guided not by purely moral considerations but rather by expedience (a gun is pointed to your head), then you are not acting morally. You might retort that the expedient choice often IS the moral choice, but my sense is that most deontologists would not regard someone as behaving morally good if they are following the laws only to avoid punishment.

    3. No, that is not so, even for a Kantian. Someone can point a gun at me and order me to take care of my children, and I could continue doing so because I ought to, not because the gun is pointed at me. vIn any case, more in a new post soon.

  4. Gene,

    You would think this a fairly obvious point, yet it is surprising how many otherwise smart people get it totally wrong. In the 1950s, H.L.A. Hart and Lord Patrick Devlin (a British jurist) had a famous debate about the propriety of victimless crimes. They framed the debate in terms of whether it was justified to "enforce morals" (i.e., legislate morality). While neither of them specialized in ethics, it's shocking how sloppy and non-rigorous their debate was, IMO.

    An excerpt I wrote for a jurisprudence paper, making a similar point (apologies for the length):

    As a preliminary matter, it is unfortunate that scholars have chosen to frame this debate as being about the “enforcement of morals” (such was even the title of one of Devlin’s books). Lord Devlin, for instance, framed the issue as being whether the state should be forced to justify criminal punishment on grounds independent of morality. This is misleading, however, because laws can never be justified without reference to some appeal to morality. Devlin himself did not perceive this difficulty. Laws, he claimed, could be justified purely based on their value in preserving order. “Rules that impose a speed limit or prevent obstruction of the highway,” for example, “have nothing to do with morals.” Such rules were valid and important, but Devlin thought the state also had the right to enforce morals in addition to enforcing social order.

    This framing of the issue makes little sense, however. By definition, the very process of engaging in “justification” discourse necessarily involves making judgments about moral value. Even in the case of something as mundane as a speed limit law (to take Devlin’s example), to say that we “should” have speed limit laws “simply” because they contribute to the “smooth functioning of society and the preservation of order” is begging the question. It assumes implicitly that the “smooth functioning of society and the preservation of order” are worthy values that ought to be pursued; that it is right to pursue such values, in other words, and wrong not to do so. But this involves no less a moral judgment than the claim that homosexual sodomy should be prohibited because sexual virtue (or at least a certain conception of it) ought to be promoted over license. The assertion that traffic laws “have nothing to do with morals” is therefore mistaken.

    Put in other terms, words like “ought” and “should” belong to the realm of ethics. To say that a law is “justified,” “legitimate,” or “proper” (or not) just is a moral judgment. Suppose, for instance, that I resent speed limit laws because I regard them as an unjust restriction on my freedom. A person wishing to persuade me that the laws are legitimate must explain why the public safety they provide (or, perhaps, the democratic consensus they represent) is more important than the competing value of my freedom to speed. If I persist in disobeying the law, then ultimately this value judgment will be forcibly imposed on me over my vigorous protest. Note that in this hypothetical example I also rest my case on a moral argument, viz., that my personal autonomy should be valued over public safety or democratic will, at least in the case of driving fast on public roads.

    As this example shows, those who engage in justification or criticism of laws must resort to moral principles in the final analysis. To justify a law is to offer persuasive reasons that the values served by the law are more important than other values, and this is a quintessentially moral endeavor. The real issue in the debate over victimless crimes, therefore, is not whether moral principles should be enforced, but rather which ones should be enforced. Should it be the principle that the citizen ought to be free from governmental coercion, or the principle that the majority ought to be free (in certain circumstances) to impose its will on the individual? This, I submit, is a more fruitful way to interpret the debate.