Why We Must Legislate Morality
The Practical Political Benefits of Natural Law
Editor’s Note: This essay was originally published at American Reformer on August 12, 2022.
Tim Keller recently critiqued evangelical Christians for not developing a political theology—that is, a theory of how to apply religious beliefs to public policy. He correctly points out that Christians do not want to penalize every sin. Specifically, most evangelicals want to penalize abortion but do not want to penalize idolatry (i.e. false religion). He writes: “Since we can’t simply say, ‘If the Bible says its sin it should be illegal’—how do we choose which morals to politically champion?” Keller aims to prevent Christians from dividing over politics by accepting that the political implications of Christianity are debatable. Keller’s piece provoked a response from several commentators, including Adam Carrington.
Keller’s challenge applies not only to Christianity but to ethical philosophies more generally. Should an action be illegal simply because it is wrong? If not, then which wrong actions should be illegal? Are there “harmless wrongs” that the state ought not to forbid?
In America, one often hears that the state shouldn’t “legislate morality,” or that people have a right to do anything so long as they aren’t “hurting anyone.” This position derives from John Stuart Mill’s famous “harm principle,” which holds that the state may only interfere with liberty to prevent non-consensual harm to other people. Live and let live!
This view, while popular, is wrong: the law may encourage virtuous actions and punish evil ones. As I have argued elsewhere, conservatism ought to abandon the liberal idea that the state exists solely to protect individual rights. Rather, individual rights derive from, and must remain rooted in, a framework of moral duties oriented toward natural human goods. Natural goods are not fleeting desires; rather, they are perceived by reason to be worthy of pursuit for their own sake because they enable humans to reach the best possible state according to their nature. If, then, rights are designed to facilitate the pursuit of natural goods, one cannot have a “right” to do wrong.
Nevertheless, drawing upon the natural law theories of Thomas Aquinas and Richard Hooker, I will argue that the state ought to refrain from punishing minor vices. Sometimes, people ought to have tacit “permission” to perform wrong actions, particularly those with minor social consequences. This view of the relationship between morality and law is attractive in that it encourages the promotion of virtue while preventing harsh intolerance. It acknowledges the reality of human sin without excusing or ignoring moral norms. It is idealistic without being unrealistic.
The Common Good Involves Virtue
Classic natural law thinkers hold that human law ultimately derives from natural law, which originates from God’s creative design and is known through reason. Thomas Aquinas argues that the natural law encompasses “everything to which a man is inclined according to his nature,” including virtue, since all people have a natural inclination to pursue virtue (Aquinas, Political Writings, 119). As the Anglican Richard Hooker–who followed Thomas rather closely–wrote in The Laws of Ecclesiastical Polity, humans have a natural “desire” to become “more perfect,” i.e. to reach “an exquisite excellence of form” by “constantly and excellently doing whatever it is that their kind does” (62). They not only seek “continued existence,” both for themselves “individually” and for their species “through their offspring,” but above all aspire “to the greatest conformity with God by pursuing the knowledge of truth and growing in the exercise of virtue” (63).
Achieving basic goods, moreover, requires good political institutions. Hooker states that societies need laws “governing the order of their common life together,” which must be framed “for the sake of the common good” and for “the sake of public order” (82). Thus, as Aquinas likewise notes, “human laws should be adapted to the common good,” i.e. the collective flourishing of members in a political community, which is accomplished especially through natural goods such as life, peace, friendship, and the rearing and education of children (Aquinas, 138). Even supposedly private actions implicate the common good to the extent that they promote or hinder human flourishing.
In a chapter in Mere Christianity called “The Three Parts of Morality,” C.S. Lewis provides a good example of how virtue promotes the common good. He invokes the image of society as a naval convoy traveling through the ocean. There is a danger that the ships will either “drift apart from one another, or else collide with one another and do one another damage.” In order to avoid this, the individual ships must be in good shape; a ship with a faulty engine or steering mechanism will fall behind or veer wildly. The only way to keep the convoy safe is to ensure that each individual ship is seaworthy enough to stay in formation. Likewise, individual people who lack virtue are especially likely to harm others. So even “private” actions affect people’s ability to follow the rules and to lend society their aid.
If virtue serves the common good, then the promotion of virtue falls within the state’s legitimate powers. Hooker writes that “the course of politic[al] affairs cannot in any good sort go forward without fit instruments [i.e. citizens], and that which fitteth them be their virtues.” He argues for this reason that “pure and unstained religion ought to be the highest of all cares” for rulers inasmuch as religion is the best way to inculcate virtue among the citizenry. Whatever view of church-state relations we choose to adopt nowadays, Christian theorists traditionally perceived the inculcation of moral character to be a chief priority of good political communities. The same is true of non-virtuous or “vicious” acts, which may be proscribed. Hooker states that laws are not “properly devised” unless they “presume that man’s will is obstinate” and seek to “moderate his actions to prevent any hindrance to the common good” (82-83). This classic view follows Romans 13:1-7, which states that God instituted government to be a “terror” to people who do “evil” but to “praise” those who do “good.”
The Danger of Banning All Vices
Natural law theorists nevertheless believe that there should be practical limitations on laws that compel virtue or punish vice. Not all morally wrong acts ought to be criminalized. This is because “the laws imposed on men should also be in keeping with their condition,” and the condition of many people is so poor that “the same thing is not possible to one who does not have the habit of virtue as is possible to a virtuous man” (Aquinas 2002, 140).
Moreover, Thomas argues, it is both counterproductive and dangerous to punish all vices or prescribe all virtues. Aiming at too high a standard will inevitably lead many people routinely to break the law, undermining the habit of obedience to and respect for the law that ensures the stability of a political community. If the state demands that the citizens “abstain from all evils,” he warns, “imperfect men, being unable to bear such precepts, would break out into still greater evils” (2002, 141) because they would give up on even trying to attain a virtue thought too difficult for them. The best option is a gradual approach that does not abandon moral norms but rather tailors criminal laws and punishments to the unique culture and condition of the people. The laws ought to aim as high as possible within any given cultural context, seeking to “lead men to virtue not suddenly, but step by step” (Aquinas 2002, 141).
Thomas’ position is mirrored in later Protestant writings. Hooker writes: “Just as physicians often must forego the best remedies, and prescribe treatments that the impatient patients will accept, just so in this present age, so full of tongue and weak of brain, we should defer to the majority” (72). Partly for this reason, human positive law may vary from place to place. “It is a law for law-makers that not all laws are right for every different society, and law-makers must be mindful of the place they live and the people they govern” (Hooker, 88). Later, Hooker states that judgments about “what is good to do” may be either “mandatory,” compelling our action, or “permissive.” “A permissive judgment is when, faced with multiple bad choices, which we cannot avoid, we are allowed to choose an option that would not otherwise be permitted, as in the case of divorce among the Jews” (76). Hooker is referring to Mathew 19:1-10, where Jesus, after stating that divorce contradicts God’s original design for marriage, is asked, “Why then did Moses command to give a certificate of divorce, and to put her [i.e. one’s wife] away?” Jesus responds: “Moses, because of the hardness of your hearts, permitted you to divorce your wives, but from the beginning it was not so.” Jesus is arguing that the Mosaic Law allowed for a lessening of the creational ideal on account of human weakness.
Hooker is not the only Protestant to appeal to Mathew 19. In a careful study of John Calvin’s writings on law, Mathew Tuininga documents how Calvin appeals to the “hardness of heart” passage to advocate restraint in legislating moral precepts. In the Institutes, Calvin accepts that the “form and content” of laws may differ from country to country as long as they all “have the same object, namely equity” (4.20.16). The severity of laws may legitimately vary across legal codes because “[t]here are times which demand increased severity of penalties,” and/or because “[s]ome peoples are particularly prone to certain vices.” Given that laws must be adapted to “the conditions of time, place and people,” he argues that no law—not even the Mosaic Law—is necessarily perfect in all times and places. In fact, Tuininga cites numerous passages where Calvin judges various precepts of the Mosaic Law to contradict natural law, concluding that God tolerated many injustices due to the “hardness of heart” of the Israelites. Tuininga observes that Calvin distinguished between what is “legally permitted” and what is “morally approved” by the law. The “imperfections” in the Mosaic Law should be seen as “accommodations” to human depravity which sought to moderate rather than to prohibit evil actions in order to obtain the best possible outcome. In this way, both Hooker and Calvin agree in principle with Thomas that the severity of moral laws may vary in accordance with the level of virtue found in the population.
Two guidelines can orient decision-making about the lawfulness of vices. Human laws, Thomas argues, should only prohibit “the more grievous [vices], from which it is possible for the greater part of the community to abstain; and especially those which do harm to others, without the prohibition of which human society could not be maintained” (140). For Thomas, human laws should focus on punishing serious and socially disruptive evils which are not overly common. So-called “victimless” vices do harm the public but do not cause a public uproar, whereas open conflicts make common life impossible. If the former go unpunished, the community will fail to realize its full potential, but if the latter go unpunished, the community will destroy itself with blood feuds.
Importantly, Thomas’ position depends not on respect for freedom in the abstract but rather on a somewhat condescending and paternalistic assessment of the moral capabilities of the average person. Aquinas is not a proto-libertarian, as some argue. Law’s ultimate goal is perfect virtue, and governments should seek ways to incrementally increase the moral standard inscribed in their legal system.
It might be helpful to flesh out examples of these natural law principles.
Perhaps the best illustration is Prohibition in America. In the late nineteenth century, many Americans became concerned about the damage wrought by drunkenness, particularly physical violence and poverty. Heavy drinking by the breadwinning patriarch often drained family budgets, leaving his wife and children starving. Even today, in about half of all sexual assaults, either the victim or the perpetrator has been drinking.
Americans reacted by passing the 18th Amendment. From 1920 to 1933, the sale of intoxicating liquors was illegal. The experiment failed. While indicators of drunkenness declined, many people were unwilling to obey the law. Illegal production and sale of booze spiked, respect for the law plummeted, deception proliferated, and organized crime rose to meet demand that could not be satisfied legally. It was during Prohibition that gangsters like Al Capone decimated cities such as Chicago. Despite beefing up enforcement, the federal government could not contain the rise in crime.
Prohibition arguably was not adapted to the moral character of the American people. And, given the eagerness of humans to alter their brain state, a total prohibition of brain-altering substances is probably imprudent at all times. Even if theoretically beneficial, it would face massive and ongoing resistance.
What about Tim Keller’s challenge: Why should abortion, but not idolatry, be illegal? This question is simple if a fetus is a living person. Abortion produces great harm to unborn children whereas idolatry, which primarily harms God, does not. Thus, abortion would seem to be the perfect candidate for criminalization. Still, conservatives must recognize that without broader changes in our permissive sexual culture, enforcing anti-abortion laws will be difficult.
Natural Law Principles for Politics and Morality
The natural law framework provides principles for how to apply morality to politics in the United States.
1. Abandon the Goal of Neutrality. Conservatives need to shed any idea that the state should be “neutral” between competing conceptions of morality. Even if it were possible, neutrality would fail to serve the common good, which is at the heart of the state’s mandate. While a certain amount of pluralism promotes civil peace, nothing should prevent the community from endorsing genuine moral good or incorporating it into public policy. In the absence of a communal conception of what life is for, an atomistic, hyper-individualistic liberalism emerges by default.
2. No one has a right to commit wrong. The state may not only promote virtue, but penalize wrongdoing. This mandate could encompass “morals legislation” such as regulations on gambling, prostitution, and pornography. Furthermore, “privacy” must be properly understood if it is to be defended. Liberalism declares many behaviors—particularly sexual behaviors—to be “off limits” to regulation due to their “private” nature. While sensible procedural limits on governmental intrusion (such as the Fourth Amendment) are permissible, shielding entire categories of behavior from any legal oversight is unjustifiable. The state certainly must never appear to endorse vice.
3. Avoid perfectionistic moralism. Conservatives must be careful not to let themselves become the mirror image of the hectoring, puritanical, progressive left. The imposition of a joyless, perfectionistic moral standard could prevent conservatives from appealing to Americans who rightly recoil from the excesses of the moralistic, coercive, “woke” Left.
Rather than aim for perfection, conservative energy would be better spent rebuilding the foundations of virtue. We need laws that, for instance, encourage marriage, discourage divorce, and promote community through friendship and civil associations. The benefits of rebuilding a healthy society are uncontroversial. Moral regulations must build upon this foundation rather than grate against it. In this way, conservatives can support incremental progress toward traditional morality while avoiding the twin dangers of judgmental moralism and amoral libertarianism.