All Commentary
Wednesday, April 1, 1987

Morality Laws = Majority License

Mr. Bidinotto, a frequent Freeman contributor, is a full-time writer living in New Castle, Pennsylvania.

One of the perennial criticisms of the free society is that, under laissez-faire capitalism, individuals would be allowed to engage in noncoercive, yet “immoral,” behavior.

Government is the social institution which protects individual rights by serving as the final arbiter of disputes in a given geographical area, and by holding a legal monopoly on the retaliatory use of physical force. In a free society, the government is concerned only with enforcing justice by resolving questions of individual rights. Concretely, this means a state limited solely to banning the initiation of force, fraud, and coercion. While there are certainly many other moral issues apart from matters of rights, these are beyond the purview of a properly limited government. The state is constrained . . . so that the people can be free.

And this limitation on the power of the state is precisely what bothers the proponents of so- called “morality legislation.” A strictly limited government would turn a blind eye to all private, noncoercive acts of “consenting adults.” People could abuse themselves with drugs or alcohol, indulge in unorthodox sexual behavior, produce or obtain objectionable books and films, waste their lives in sordid dissipation—so long as they did not force themselves upon unwilling participants.

Allowing such behavior—critics charge—would undermine the very foundations of civilized society. They point out that political institutions rest upon a base of moral and cultural values. To permit an erosion of the ethical roots of civilized society would, eventually, cause our political institutions to rot and topple. Hence, freedom carries within itself the seeds of its own destruction. It would offer no impediments to those who would emerge from the dank recesses of society to pervert and ultimately destroy that freedom.

One need not be a prude or busybody to sympathize with the concerns of these critics. There is a direct relationship between the ethical status of a culture, and the nature and stability of its political institutions. For example, a culture of collectivists will not hesitate to sacrifice individuals for “public purposes.” A culture of pragmatists will see no purpose in restraining its government by principles. A culture of fatalists will remain apathetic in the face of injustice. A culture of hedonists will surrender its vital political institutions for the sake of short-term gratification.

Yes, the free society must have a moral base. Those concerned about the future of liberty should realize that ethics provides an integral and indispensable foundation for their persuasive and educational efforts.

But the critics of laissez-faire are too worried and impatient about society’s fate to employ only peaceful persuasion. They would erase the boundary line between “public” and “private” matters, bringing all questions of personal values into the public arena—to be resolved by government coercion. There would be no sphere of purely private moral matters—no area of values from which the state would be excluded.

And in a democracy, where such matters are decided at the ballot box, morality laws would actually mean: majority license.

Before we proceed, some clarifications. Does excluding the state from the realm of personal morality imply state sanction of “moral relativism”? Not at all. Nor does “moral certainty” imply the right to impose one’s morality by law. One may acknowledge that moral “absolutes” exist—and even be personally certain of what those absolutes are-yet still recognize the need to exclude the state from private ethical matters.

Now—why should the state be limited to mere peacekeeping? Why should it be excluded from the role of being the guardian of moral values?

First of all: whose values are to be imposed? Which theory or standard of personal morality would be elevated to the status of public morality?

Even at the theoretical level, it is impossible to get unanimity, or even a loose consensus, concerning a standard of “the good.” When we descend to the concrete level of imposing, not just a standard, but specific values themselves, the exercise becomes virtually hopeless. For even if society could agree to one abstract theory or standard, there are countless potential interpretations of each of them.

Inevitably, to “impose values” must mean: to impose somebody’s values, and to exclude all others. But again—whose values? Who decides? By what method? By what right?

This brings us to the central problem. To “legislate morality” is to invert the proper relationship between force and ethics. To let the state govern morality, is to allow “might” to govern “right.”

in the face of conflicting views of “the good,” those empowered to “legislate morality” would resolve all value issues, not by demonstration, but by coercion. They would not be required to prove that their views were correct. They would not be constrained by “the consent of the governed” . . . or by Constitutional checks and balances . . . or by the principle of “equality before the law”—or by the Bill of Rights. As the final, unchecked arbiters of morality, they would be certain to equate “the good” with their desires. Theirs would be government by fiat. “Might” would not simply enforce “right” behavior; “might” would, in the final analysis, decide what “right” means.

Legally, this would negate the very principle of the Rule of Law. Ours would become a nation not of laws, but of men . . . of men above the law.

And the final arbiters of values would be above morality, too. Who would hold them morally accountable? Ironically, the alleged motive of those who would legislate personal morality is that they wish to reintroduce “moral absolutes” into a decadent culture. But to advance “moral absolutes” by the arbitrary method of “might makes right” is a transparent contradiction.

The advocates of morality legislation would undoubtedly reply that this argument goes to extremes; that they are not advocating a dictatorship; that they believe in democratic principles; that a majority of citizens agree with them on such issues as outlawing drugs and banning pornography; and that all they wish to do is to codify the popular will.

But this does not solve their problem. Even if democratically (not despotically) imposed, morality laws equal majority license.

Let us assume that there was virtual unanimity of opinion concerning the evil of some private, noncoercive act. Were the majority to enact a law prohibiting such an act, it would not be enshrining “moral absolutes” in the legal code; quite the contrary. Rather, it would be declaring that morality is a numbers game; that “the good” was to be determined by majority vote; that mere force of numbers decides moral questions in society; in short, that “might makes right.”

Are There Absolutes?

Voting on moral standards, purposes, virtues, values, and choices means that these are not “absolutes,” but socially relative—i.e., dependent upon the outcome of an election. (And remember that in most elections, only a small fraction of eligible voters decides the outcome.) In any event, voting on moral issues reduces “moral absolutes” to a matter of transitory public opinion, while elevating public opinion to absolute status.

But surely—replies the advocate of morality legislation—there are some issues of ethics in which it can be scientifically demonstrated that a given choice is utterly destructive of the indi vidual’s life and values. Why could we not pass laws concerning behavior that, say, is demonstrably self-destructive?

There are two possible alternatives here. Either the “victim” knows that his behavior is self- destructive, or he does not. If he does not know, the “problem” can be presumably solved, not with a law, but by simply informing him of the facts. If he does know—that is, if he intends to behave self-destructively, while not jeopardizing others—that is his right. To declare otherwise is to make the curious claim that his life is not his to dispose of, but that it is the property of others.

Thus, even scientific proof of the self-destructiveness of an activity is irrelevant. For instance, the detrimental effects of drug abuse on the consumer of narcotics is an established fact. But to declare that adults should be prohibited access to such drugs, is to proclaim the principle that some people may not make value decisions, while others may arrogate to themselves the power to make value decisions for them. That still enshrines inequality in the law, elevating some people over others, allowing the legally elevated to treat the legally subordinate as property. Hence, while the harm to the individual may be objectively demonstrable, outlawing voluntary, self-destructive activity still injects arbitrariness into the legal system.

Let us, then address an argument to those who would impose their moral codes on others. Moral principles are either demonstrable, or they are not. If they are, then they can be effectively conveyed by noncoercive persuasion. If they are not, they are arbitrary; and if enacted into law, they will only increase public contempt for the legal system, while adding chaos to the lives of law-abiding citizens.

One suspects that those who must force their values on others, do so because those values would otherwise suffer in open competition in the marketplace of ideas.

Finally, a point of clarification. I am not arguing that every moral code requires liberty for its implementation, nor that every moral code is compatible with individualism and laissez-faire capitalism. As history demonstrates, there are any number of moral systems perfectly compatible with force; some, indeed, have been little more than rationalizations for despotism.

But the relative compatibility of various ethical systems with human freedom is another subject. The point here is more narrow. It is simply that those who would use government to impose “moral absolutes” are deceiving themselves, in each case, they are establishing, not universal absolutes, but personal caprice.