Is Legal Moralism Justified?
Legal moralism may be described as the use of law for the purposes of enforcing morality. Therefore, the law may be used (legitimately) to criminalize a given act/behavior that is deemed immoral in a given society even in the event that such acts/behavior does not cause harm. Here, it is worth noting that the immorality of every action makes it illegal. Rather, being immoral is sufficient ground to make it illegal. Whether legal moralism is justified has been the topic of debate for many philosophers as well as citizens. Whereas some fill that it is a form of legal coercion that denies them their rights, others hold that legal moralism is important in a society because it helps enforce laws that go a long way in fostering moral citizens by upholding the moral standards of the society in question.
Law and morals
Perspectives on legal moralism
In 2003, the Supreme Court overturned laws that banned homosexual sodomy in Texas in response to a Lawrence v. Texas case. Before this ruling, there had been laws in the State that banned homosexual sodomy as a deviate sexual act. The case began when an individual by the name of John Geddes Lawrence and his partner (Tyron Garner) were arrested after being found engaging in sexual acts. Being members of the same sex (male) they were both held in police custody for having broken the law by engaging in immoral acts. However, the laws against homosexual sodomy were ruled as unconstitutional due to the fact that it violated the right to privacy. The Supreme Court also overturned the anti-sodomy laws in another 12 States in the light of the case. The 2003 Lawrence v. Texas is a good example of legal moralism. In Texas and other states at the time, the law criminalized homosexual sodomy because it went against the moral standards of these states. However, these acts did not necessarily hurt anyone and were between two consenting adults. With regards to this case (s) and thus legal moralism, John Stuart Mill holds that any harmless behavior even if it is immoral should not be subject to prosecution by the law. Patrick Devlin disagrees with Mill and holds that the society has the right to defend itself against any attacks on morality, which constitutes part of society.
Legal moralism is debated on in a number of fields including:
Patrick Devlin on legal moralism
Patrick Devlin was one of the biggest advocates of legal moralism. In defense of legal moralism, he states that "I think it is clear that the criminal law as we know it is based upon moral principle. In a number of crimes its function is simply to enforce a moral principle and nothing else". Here, Devlin presents a number of important points in support of his stand on legal moralism. He notes that any given society is made up of political as well as moral ideas. These ideas (shared by members of society and thus binds them) are important in the society and thus for humankind because they govern the lives of the people. According to Devlin, anything that threatens these shared ideas threatens the bond and thus the society itself. For this reason, the law has to be used to protect these bonds against any threats. The law, according to Devlin claims to have authority to speak about both what is considered moral and immoral. However, he notes that, where the law gets its authority is "Undoubtedly, as a matter of history, it derived both from Christian teaching" (135). Here, he goes on to make it clear that given that some people may not have faith in the religion, then it is the people (greater majority) in the said society who determine what is moral and what is immoral. This is to suggest that the society itself sets the standards. This perspective can be said to be based on the utilitarian approach where something is only said to be good/right in the event that it increases happiness for the greatest majority while reducing pain. However, the issue with this thus approach is that it justifies the suffering of a few if happiness for the greatest majority is the result.
Legal moralism and behaviors
As previously mentioned, with legal moralism, any given action or behavior can be criminalized simply because the society (majority in society) have deemed it immoral even if the action/behavior does not harm anyone. Good examples of this are homosexuality and women driving vehicles in some Muslim countries. One of the biggest problems with this approach (legal moralism) is that it violates the needs of some of the member of society. According to Devlin, society is made up of individuals. This being the case, then it is only right that their needs and interests be considered. In the event that their actions and behavior do not cause harm or are not a danger to others or themselves, then there is no reason as to why they should not be accepted. On the other hand, as Hart would argue, there is no sufficient evidence that shows that the decriminalization of acts/behaviors that were formally considered immoral threaten the long term existence of a society (Burt, 2004). If anything, societies tend to survive changes and become more understanding. This becomes more evident when looking at studies on the acceptance of homosexuality in the United stated. According to a study that was published by Pew Research Center in 2018, it was found that well over half (55 percent) or Americans favor gay/lesbian marriage while 37 percent are opposed to it. This is a significant change from a decade ago when 55 percent were opposed to such marriages. This proves that societies can survive changes especially when given behaviors and acts do not cause harm to others or those involved and where there is a better understanding of such behaviors/acts.
Mill's harm principle
Mill's "harm principle" is a stand against legal moralism. According to Mill, "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant". For Mill, no one, including the government should interfere with the liberties of an individual (adult of sound mind) and any actions or any form of control against such an individual should only be exercised in the event that the individual causes harm to others or the society they live in. For Mill therefore, such acts as homosexuality and pre-marital sex (between consenting adults) which a society may consider immoral are fine given that they do not cause harm to others. Here, Mill is advocating for the protection of the liberties of an individual in society. That is, the only role of the government and the laws it puts in place is for protecting these liberties. This may be described as an argument against legal moralism given that the law from Mill's perspective would have no authority to criminalize given actions/behaviors considered immoral if they do not cause harm to others.
While Mill does present a strong argument against legal moralism that can be used to violate the rights of some in society, his argument has a weakness in that he downplays how deep our lives are enmeshed with those of others. He simply means that it is in fact possible for people, while practicing their rights, to indirectly cause harm to others. For instance, while free speech is a right of an individual, words can hurt an individual causing emotional harm to the person. A good example of this is racial slurs that may be used in one’s home or ones property. Over time, this may cause emotional damage to others who may find given words being used as being negative. With this regard, it can be argued that Mill goes to the extreme when it comes to personal liberties as well as his stand against legal moralism.
While privacy and liberties of the member of society are indeed important, it is clear that legal moralism is justified under certain conditions. There is no doubt that some ideas of morality are influenced by religion (such as love your neighbors and treat them well) and emphasized on by society. While one does not have to do this in reality, some immoral behaviors and acts have to be criminalized in order to ensure order in society. A good example of this is with regards to given sentiments and behaviors that today may be regarded as hate speech. For instance, the use of such words as “the N-word” use of various symbols such as the swastika should be criminalized especially when used to intimidate other races. This is simply due to the fact that they can over time cause emotional harm to the victims who may feel stressed and depressed over time as a result of fear from such words and symbols. On the other hand, it may contribute to conflicts between different groups. Here, it is possible to see why certain immoral actions should be criminalized under certain conditions.
© 2017 Patrick