2013-11-11

The Moral Case Is The Weakest Case

Robert Murphy responds to Gene Callahan on legislating morality.

Callahan's position is that no one really means that it's wrong to legislate morality since, after all, murder is illegal precisely because it is immoral to kill others.

Murphy's position, more effectively described in this comment, is that immorality is neither a necessary condition for legislation (since plenty of amoral things can be legislated, such as for example the procedure for electing officials), nor is it a sufficient condition (since plenty of immoral things are entirely legal, such as talking back to your mother).

If we go no further, it is entirely obvious that Murphy has the stronger position. Callahan doesn't even bother to argue his position. Rather, he seems to take it as self-evident that every act of legislation is a codification of morality. As yet, he has not directly responded to Murphy's necessary/sufficient criticism, but that is likely only because he hasn't had time yet.

Morality Is A Weak Case For Law
At any rate, the matter simply comes down to this: If the only reason things are illegal is because we find them immoral then all I have to do in order to deprive you of your rights is make a moral case against them.

Thus, if I can effectively argue that it's immoral for you to drive a Rolls-Royce while there are people in your city who are forced to take public transportation, then I have the one thing I need to take away your Rolls-Royce: A moral case for my actions. (If you think this is a stretch, then ask yourself what modern Progressivism's core arguments against capitalism state.)

Thus, if I can effectively argue that it is immoral for someone with your character flaws to freely roam the streets and endanger others, then I have the one thing I need to justify killing you: A moral case for my actions. (If you think this is a stretch, consider the death penalty.)

In truth, murder wasn't always illegal. A century or so ago, people were still settling their scores through duels. Duels were not free-for-alls, nor did the winners of duels immediately go to jail. Instead, there were accepted standards for dueling. There was a right way and a wrong way to do it. If you cheated, you would go to jail, but if you won a duel "fair and square," then you were well within your rights.

While we now consider duels to be archaic and somewhat savage, at the time, they were far less savage than the alternative: chaos and cold-blooded murder. Duels served to preserve the social order when men came to blows. So, killing wasn't always illegal, but it has always fallen under the purview of the law, and the reason is because legislating these sorts of things enables individuals to settle their scores in a way that prevents a complete breakdown of social institutions.

And while doing so would be out of scope here, I can make a similar argument for private property.

Conclusion
Obviously nothing I've written here will be enough to sway anyone from believing that all legislation is the legislation of morality. Plenty of people believe in socialism and will reject my counter-example. Plenty of people support the death penalty and will reject my other counter-example.

But I do hope that most liberty-minded people hold out resistance to both ideas and that they can recognize that justifying any kind of legislation on purely moral grounds is an incredibly weak case for that legislation. I hope liberty-minded people will be able to see that we enforce rights to life and property not because it is moral to do so (although, I believe it is), but because it best preserves the social order.

P.S. - I wanted to title this post "Why Is Murder Illegal?" but I figured at the last minute that such a title would be far too inflammatory, and would merely distract from the point I'm trying to make.