All Laws Legislate Morality
It's popular these days to say that "you can't legislate morality". I've even said it a time or two myself. But is it true?
I read an article a couple of days ago that challenged my thinking on that question: Why We Can't Help But Legislate Morality. In it, Micah Watson argues that morality underlies every law that's passed.
It is of course true that some laws will be better conceived than others, and many may fail entirely to achieve their purpose. But that they have a purpose, and that the purpose includes at least an implicit moral element, is incontrovertible. One need only ask of any law or action of government, "What is the law for?" The answer at some point will include a conception of what is good for the community in which the law holds. The inversion of the question makes the point even more clearly. What would provide a rationale for a law or governmental action apart from a moral purpose?
Of course, some choices will fall within the discretion of a polity's citizens. Not every decision has profound moral consequences. But even drawing the line between morally innocent choices and morally culpable choices demonstrates our moral understanding. Abraham Lincoln made this clear in his debates with Stephen Douglas when he noted that Douglas' professed ambivalence about whether states voted for or against slavery showed that he did not think slavery belonged in that category of actions that are truly morally wrong. If you don't care which way a state votes on slavery, then you clearly don't view it as a horrendous moral evil. Rather, you treat it like a state lottery: it is fine if the people want it and vote for it, and it is fine if they don't.
The logic of morals, then, means that there can be no right to do a wrong. Built into the notion of wrong is the corresponding truth that an authority is right to punish perpetrators of the wrong. The idea that government can act as a neutral arbitrator between competing notions of the good life is ultimately incoherent because the idea itself promotes an underlying conception that this arrangement will lead to the best state of affairs.
Every one acts on their understanding of what is moral -- what is best for society. People advocate for higher or lower taxes because of a belief that the rich either need to bear more of the burden or that people are entitled to keep what they've created. People advocate for more or less international trade because they either believe that it's more moral to buy from others no matter where they're located or they believe that it's more moral to buy from your own countrymen. Morality underlies all laws.
The true question is not whether or not a law is legislating morality. The true question is whether that moral issue is critical enough to justify creating a law against it.