Another Bad Argument Against "Legislating Morality"

And the comment thread of my previous post, I encountered another bad argument against "legislating morality."

This one runs that, if there is a law against something, then people lose their ability to behave morally in that area. The steps in the argument are that:

1) For something to be a moral choice, it must be a choice. The rate at which my heartbeats is not a moral issue, since I can't choose it.

Step one is sound.

2) Once there is a law against X, a person is no longer doing not-X by choice: he is being forced to forgo doing X.

Step two is clearly unsound. Drug prohibitions do not prevent people from buying drugs (or at least from attempting to do so): they change the incentives involved in doing so. Making prostitution illegal does not prevent people from using prostitutes. And so on. If I think it is wrong to use heroin, I still faced a moral choice, albeit with potentially higher penalties if I choose to do so.

This is true even if I take a strict Kantian view of morality: The mere fact that there is a law against my engaging a prostitute does not mean that I can't forgo doing so out of a sense of duty.

Nothing above is, of course, an argument in favor of regulating some "victimless crime." I am only demonstrating a negative here: the above argument fails.

15 comments:

  1. Thanks for your response Dr. Callahan, even though as you indicated, this wasn't the original position you were criticizing.

    It seems to me that what removes the opportunity to act morally, is not legislation by itself, but execution of what the legislation states.

    For example, it's not simply making prostitution illegal that eliminates the opportunity to act morally - it's throwing someone in jail for it. It seems entirely sensible to say that the individual in jail can no longer choose to act morally regarding prostitution - unless you figure that the metal bars on the cell are just a "disincentive" against him running out of his cage to go have sex with a prostitute rather than an actual force prohibiting his movement.

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    1. This isn't going to work either, because look, you are saying that being in jail for prostitution removes your ability to act morally in regards to prostitution. (Unless, of course there are prostitutes in jail!)

      But the same is going to apply to being in jail for robbery: That will also thwart your ability to act morally in regards to prostitution. So what do we do? Let robbers out of jail, but only if they're getting out to visit prostitutes, and not to rob again?

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    2. And in any case, your assertion is false: Someone can adopt a firm resolve not to have sex with prostitutes even if they are lost in the forest with no prostitutes anywhere in sight. ("God, if you help me out of this, I will never visit a hooker again!") Anyone is capable of making a similar commitment even if they are in prison.

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    3. Thanks, I keep switching back and forth in my head although now I'm sure I understand what you're saying. I'll think this over - I appreciate your responses.

      -Bharat

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  2. You know, that victimless crime bit really sends non-libertarians on guilt trips.

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  3. Out of curiosity, do you in fact believe in the Kantian position that an act cannot be moral if it's not freely chosen?

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    1. It has to be chosen. I'm not sure what "freely" means here.

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    2. Well, what does "chosen" mean to you?

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    3. I am at the computer. I could go to the fridge and get a cider, or not. If I do, I chose to do it.

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    4. So you believe that if the universe offers you no ability to have acted differently than you actually acted, then your actions can't be moral.

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    5. Yes: if a meteor crashes down on me, my breaking into pieces is not a moral act. (It can also not be immoral.)

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  4. For what it's worth, on *this* post I totally agree with you Gene. But I still maintain that the standard claim "you can't legislate morality" is fine, and that the claim can be taken to mean something significant, not just the personal view of the speaker.

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    1. Well, I know people mean something hen they say it. I think what they usually mean is "Don't legislate personal morality."

      But once you put it like that, the problem is obvious: people are going to disagree on when morality is (if it ever is) just personal. So it gets us nowhere.

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  5. Well, super-delayed post on this, but this topic came to mind recently for me. Hopefully you still notice this comment!

    I've heard some philosophers say that if someone points a gun at you and "forces" you to do something normally immoral, then it's no longer an immoral act. For example, if someone holds a gun to your head and tells you to rape a woman who does not consent, even if you do it, it would not be an immoral act. I have some intuitive agreement with this (not saying I'd do or not do it; just saying I have some agreement with it not being considered immoral, considering the situation that is occurring).

    However, according to what you have said in this post, it seems it might still be an immoral decision. The man still has a choice even in this situation: it's just that his incentives have drastically changed. He can still choose not to rape the woman. Would you say that it is an immoral decision, or is there a subtlety I am missing?

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    1. Yes, I think it is still immoral. Think of Socrates, Jesus, people who hid Jews in WWII, etc.

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