I have some questions from a member of the studio audience to address.
One concerns a topic related to several recent posts – the relationship between law and morality.
I am used to thinking about it like this: "every law/everything that is legal should me moral, but not everything that is moral should be legal obligation" or if you prefer "everything that is illegal is immoral, but not everything that is immoral should be illegal"
I believe that this is true with respect to the criminal law. A person ought not to be punished unless he has done something worthy of punishment. If a person has not done anything wrong, then it is a mistake to say that he should be punished.
In other words, legislating morality is not only a legitimate function of the law, it is the primary function of the law. The thesis that it is objectionable to legislate morality substantially boils down to the thesis that there should be no relationship between punishment and the question of whether or not the person being punished actually did something wrong.
The specific difference between criminal law and morality is this:
Morality is concerned with altering a person's desires – so that they will do or forebear from certain actions even when nobody is looking over their shoulder. When society uses social forces to give people a moral aversion to taking the property of others, then those people will leave the property of others alone even when they have an opportunity to take that property.
Law, on the other hand, is concerned with getting people to perform or to abstain from certain actions by threatening to thwart the desires that already exist. "If we catch you performing action A, then we will create a state of affairs that will thwart many of your other desires – a state that you certainly have reason to avoid. You can avoid the realization of such a state simply by not doing A."
The problem with legal penalties is that the motivation only applies when the agent believes that he is at sufficiently high risk of being caught. If the threat of being caught is sufficiently reduced, then to that degree performing action A will not lead to the bad results that the agent has reason to avoid.
On the other hand, the law is a heavy, blunt weapon. To put the rule of law to work in all instances of wrongdoing (e.g., making it a crime for a child to lie to her parents) would be impractical at best.
Another class of immoral actions that should not be made illegal are those pertaining to certain rights such as the right to freedom of speech. No good person would stand before an audience and promote racial segregation, for example. However, the right to freedom of speech means that a person may go ahead and make statements that no good person would make, and the only legitimate responses are words and private actions.
Yet, there is also a class of legislation – other than criminal legislation – that is not concerned with immorality. This has to do with regulation – and, in particular, with standardization.
It is economically and socially beneficial for the country as a whole to adopt certain common common ways of doing things. For example, it is useful if everybody in a country drive on the same side of the road, and for pipes and bolts to have a common number of threads per inch. It is useful for reports to count like incidents as alike so that aggregators can focus on comparing apples to apples.
So, the state can designate a particular street to be a one-way street without appealing to a natural moral law that dictates an obligation to drive only one way on a particular street. It can demand that bolts contain one of two values for the number of threads per inch without proving that all other possibilities represent moral crimes.
We can still make something of a moral case for regulations and standardizations in general. People have a reason to promote conformity in some instances – such as conformity in which side of the road to drive on and conformity in the construction of certain types of tools.
It does not matter what standard everybody adopts, as long as everybody adopts a common standard. So, people generally have many and good reasons to promote a desire to conform to certain common standards, and an aversion to violating those standards.
Sometimes this moral case springs a bit, and we demand conformity even where conformity does no good – even where we would benefit by diversity rather than conformity. We end up demanding conformity in clothing, hair styles, hobbies, viewing and listening habits, and food preferences where there is no reason to argue for conformity at all.
However, the fact that a tool might be misapplied is no argument for throwing away the tool. The possibility that somebody might use a hammer to drive a screw is no argument for ridding the world of hammers or screws.
This, then, is a brief rundown of the relationships that I see between law and morality. Nothing should be made criminal unless it is immoral. Yet, it is not the case that all things that are immoral should be made criminal.
The law is far too unwieldy a tool to be used in cases of minor wrongdoing. Standards and regulations may be imposed even though they do not reflect a specific moral fact. However, we still have many and strong reasons to promote conformity to some standards – reasons to promote a desire to conform and an aversion to violating some standards. Yet, this is not an argument for universal conformity on all things.