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Avoiding the dogma of legislating morality

Posted by Don McLenaghen on February 19, 2012

I have gotten a lot of feedback on my blog post and our segment last week about gender selection; and more to the point whether we should legislate morality.

Some people have expressed a view that we should legislate morality…because the laws skeptics would enact could help make the world a better place.

My response to this is to reiterate my opinion last week that I think it is bad to legislate morality. First, there is a reverse implication, if we create moral laws; that implies all laws are moral…something history has shown time and again not to be true.

That said, I don’t know if we are talking about the same thing and that is often the problem with philosophy. When the religious, conservative, or traditionalist use the word morality they mean metaphysically right…the ‘ought’ vs. the ‘is’. What is moral is ALWAYS moral; it transcends time and space. Moral is the word of god and is immutable. Often in the skeptic community we hear this with regards to libertarian or, dare I say it, socialist thinking. They hold to some precepts as foundational or a prior. Regardless of where you are coming from when something is moral, it is so irrespective of reality or the way things are.

Although the original meaning of ‘moralis’ simply meant ‘proper custom’; centuries of Christian influence and indoctrination (irrevocably) alter it to ‘right, good and virtuous!’

In a skeptical article pointed out by our loyal readers, Ian (thanks for your input). The article argues that not only can we legislate morality but that we must do so. Although he makes token appeals to evidence one of his main premises, and where I have issue, is like this which states – “if your conscience tells you some action may be causing great harm to society, you have both the right and, I believe, the duty to try to help or correct the situation, through both social and political means”. I think it is the appeal to ‘conscience’ that can be problematic. It lays moral laws on a foundation of belief and opinion and not fact or reason.

In the article, written by what I would guess is a libertarian, it shows why we should not think in terms of morality because we are too culturally indoctrinated to think of this dogmatically. The article states “we don’t limit or take away the right to free speech just because a person’s exercise of that right led to deaths”. The author praises Obama’s book “The audacity of hope” for saying “I propose that most law, either in spirit or letter, is nothing but encoded morality”; one must ask whose morality?

That is the heart of my criticism. Morality is, at least in our modern context, dogmatic; dogmatism (be it theological, political or skeptical) is innately wrong…regardless of the good it may incidentally do. Using the term morality, this necessarily must appeal to “belief” and the metaphysical, creating a field of competing equals. A Christian belief in ‘right or wrong’ based on the bible is no less sound than one based on the philosophy of ‘inalienable rights’; yet both may be invalid because they are assertions of belief not discovered knowledge.

This is why I don’t think we should legislate morality. So do I think law can make society better – yes; do I think we should use law to modify people’s behaviour to make society better – yes, but cautiously; do I think I should impose my moral belief on others through law – no, no matter how right I might think they are or how much incidental good they may do. What I would do is approach law like I do everything else; use the tool kit of skepticism (evidence, logic, reason and the scientific method) to create law ethically.

Okay, what do I mean ethically, is that not just a different way of saying morality? Yes and no. There is a conflation between ethics and morality however they are not really the same. Morality is a judgment on something; ethics is more a process…a WAY to do thing.

I believe that we should make laws that are consistent with empirical evidence…rational thinking…what I could call ethical thinking. I think ethical thinking is a method like the scientific method; it is not an answer but a method to derive answers. Ethical thinking, at least as a ‘good’ skeptic would apply it, should not be dogmatic, can evolve over time and point to truth but never claim to be it.

So laws created with ethical thinking are not moral or immoral; they are the best attempt to make society better. We can say that laws are ethical or unethical. For example, the article said free speech should be maintained even if it resulted in deaths. To be fair he did make an exception for yelling fire in a crowded theater as unethical because it ignores hate speech (for example).

I can say unethical, because he is dogmatic in his views of rights thus not willing to change based on evidence. It’s double dogmatic because he makes an exception for one ‘harm’ but not another, yet of the two, genocide seems the greater…his exclusion is arbitrary based on his BELIEFS!

This view of rights are asserted as being true; as in the US Declaration of Independence, a noble document but one that asserts that “We hold these truths to be self-evident, that all men are created equal”. Although I am sympathetic to these words, anything asserted is dogmatic and innately unethical because the King of England could equally assert “all men are subjects of the king”.

Here’s an example. When law is based in morality, we are stuck saying “pot smoking is immoral” forever because something is either moral or immoral…there is no kinda moral. By using the “M” word, you create dogmatic law.

It sounds self-serving, but really if 'reason' is meant authentically then...rationality to rule them all

Ethical thinking gets around this dilemma because its outcomes are not moral but the best answers so far…like science. So we can say in 1980 “pot smoking causes major harm to individuals and society” and yet as more research provides evidence it (may) not be harmful you; we can alter our law/statement “pot smoking causes little harm to self or state” without being inconstant or contradictory.

So now we return to our original question…should we legislate morality? No, I think doing so lowers ourselves to the same level of the theocrats we often decry. I do however think law can be used to make society and its citizen better if those laws are created ethically.

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One Response to “Avoiding the dogma of legislating morality”

  1. Ian said

    Perhaps our difference stems from semantics. I see humanist morality as an evolving definition of what is good, and is based and informed by the best available reason and evidence. Similarly, I don’t see our legal system as fixed, even passed laws need to be revisited and revised (I assume you’d agree here).

    You concede that laws can and should be used to improve society, but to decide what criteria makes one society better than another, you are applying a moral framework.

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