An officer scoops up a handful of new 10-euro-cent coins at the Greek National Mint in Athens October 24, 2008. REUTERS/John Kolesidis (GREECE)

Oliver Wendell HolmesMicah Watson is William E. Simon Visiting Fellow in Religion and
Public Affairs at the James Madison Program at Princeton University, and
Director of the Center for Politics & Religion at Union University
in Jackson, Tennessee.
This article originally appeared in Public Discourse and is reproduced here with permission.  

“You can’t legislate morality” has
become a common turn of phrase. The truth, however, is that every law
and regulation that is proposed, passed, and enforced has inherent in it
some idea of the good that it seeks to promote or preserve. Indeed, no
governing authority can in any way be understood to be morally neutral.
Those who think such a chimerical understanding is possible could hardly
be more wrong. For, in fact, the opposite is true: You cannot not legislate morality.

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? 

The
question is which vision of morality will be enforced and by what sort
of government.

The “good” here in question is not merely the product of
passing fads or idiosyncratic preferences. When something is wrong, it
is not wrong merely because it offends someone’s personal taste. The
governing authority’s power to pass and enforce laws takes account of
the beastly side of human nature while holding that some wrongs are so
fundamental that they demand a robust and coercive response. If there
are truly deeds that are gravely morally wrong, then it follows that
there must be an authority established to command that such deeds be
avoided and to punish the transgressors who commit them.

As Hadley Arkes has argued, if it is wrong to torture
other human beings, then we do not content ourselves with mere tax
incentives to encourage citizens to stop. We know that the wrong of
torture requires that this choice be removed altogether from the domain
of what is acceptable. You can enjoy the symphony, a NASCAR race, or the
latest offering at the movies, but the logic of morals and law removes
the option of torturing your neighbor for your weekend’s
entertainment—even if your neighbor annoys you.

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.

It is a historical irony that the most famous attempt to
sever the connection between law and morality illustrates the enduring
link between the two. This attempt was made by Supreme Court Justice
Oliver Wendell Holmes in his 1897 address at the graduation of Boston
University Law School, “The Path of the Law.”

Holmes argued that high-minded moral concepts only
detract from a clear understanding of what law is and what it should do.
Holmes proposed to completely eviscerate moral considerations from our
understanding of law. “For my own part,” he said, “I often doubt whether
it would not be a gain if every word of moral significance could be
banished from the law altogether, and other words adopted which should
convey legal ideas uncolored by anything outside the law.” To understand
law, Holmes declared, we must adopt the point of view of a “bad man”
trying to avoid getting in trouble rather than start off with idealistic
concepts of moral improvement and the good life.

Unfortunately for Holmes’ argument, his denial of the
link between law and morality can only be made by invoking the language
of morals and law. To understand the law, he suggests, is to look at the
law as the bad man does. But this raises a question: How, might we ask,
are we to truly understand what it means to be a “bad man” and what it
means to be a “good one”? Is it not telling that Holmes’s very attempt
to expurgate morality from the law itself depends on making a moral
distinction? If Holmes is using the terms “good” and “bad” merely as
descriptive statements about how some men see themselves (the bad men
looking to keep out of trouble, and the good men thinking that they are
beholden to some external morality), then he is doing more than
attempting to separate morality and law; he seems to be denying morality
altogether. Yet he explicitly denied any moral skepticism in his
address.

But if Holmes is using the normative words as truly
normative, then he cannot help but back himself into the logic of morals
by requiring us to make a judgment about good and bad men. That is, he
requires us not merely to make moral judgments distinguishing between
“goodness” and “badness” (and thus better and worse, right and wrong)
but also to associate “badness” with those who do not see a link between
morals and law. Whatever his intentions might have been, Holmes winds
up illustrating the link between the logic of morals and the logic of
law.

To legislate, then, is to legislate morality. One can no more avoid
legislating morality than one can speak without syntax. One cannot sever
morality from the law. Even partisans of the most spartan libertarian
conception of the state would themselves employ state power to enforce
their vision of the common good. Given this understanding, the term
“morals legislation” is, strictly speaking, redundant. The real question
is not whether the political community will legislate morality; the
question is which vision of morality will be enforced and by what sort
of government.

Micah Watson is William E. Simon Visiting Fellow in Religion and
Public Affairs at the James Madison Program at Princeton University, and
Director of the Center for Politics & Religion at Union University
in Jackson, Tennessee.
This article is adapted from an essay on morals
legislation in a forthcoming volume honoring the work of Hadley Arkes
edited by Robert P. George, Francis J. Beckwith, and Susan J.
McWilliams. 

Micah Watson

Micah Watson is Assistant Professor of Political Science and Director of the Center for Politics and Religion at Union University. HIs broad research interests include political philosophy, politics...