Morals, Religion, and the Law

There was an interesting letter to the editor in yesterday's newspaper by one Ross Reynolds of Toronto (National Post, Oct. 11, 2009), which the editors chose to place under the rubric "Morals and the law don't mix". I found it interesting not because I agreed with it, for there is just about nothing in it I agree with (indeed, it is rare to find so much error stuffed into one paragraph). Rather, it is instructive because the errors it contains, which are fourfold, are believed by so many. The occasion which provided the context of the letter is a recent Canadian Supreme Court case attempting to do away with Canada's supposedly archaic and intrusive laws against prostitution.

(Prostitution itself is technically not illegal in Canada, but there are various laws against communicating for the purposes of prostitution which make the "trade" de facto rather difficult to ply without violating the law. It is not my purpose to comment on the specifics of the court case in question.)

I will quote the letter in full, and follow it with my remarks:

"The prostitution ban [actually, he's wrong, as there is no outright ban as such], similar to the drug prohibition, has never been successful at reducing demand and is fabricated from an outdated concept of morality. Letter-writer Paul Kokoski asks, 'How long can a democracy survive if its government passes laws that act to separate states from morality?' I would humbly suggest to Mr. Kokoski [that] it isn't the government's duty to instill its citizenry with a moral code - that responsibility should belong to the church. The greater the distinction between morality and human rights, the better."

There you have it. And now for my remarks.

1. "...it isn't the government's duty to instill its citizenry with a moral code"

Mr. Reynolds may be partly correct: It is not government's responsibility to instill a moral code, because that is the job of parents, teachers, and perhaps other social institutions (e.g. churches, schools, professional organizations, etc.). But it is most certainly the government's duty to protect an already-existing moral code, especially in those parts of it which are not at all in contention by the broad majority of society. Indeed, there are arguably few other legitimate roles which a government does have.

Now, in this I am not to be taken as implying that it is always wise or prudent for the law to intervene in morality. But the law certainly has the legitimate right to do so.

I would humbly submit that, contrary to most of the high-minded liberal claptrap you're likely to hear, prostitution is widely accepted as an immoral trade that almost all of us rather wish didn't exist (though granted its immorality lies more on the purchasing side of the equation than the sales side). It is either the source or the symptom of many a well-known social ill. And for heaven's sake, let's stop calling prostitutes "sex workers" as if prostitution is a viable career option for our daughters. If you believe that it is, and you have a daughter, then she should probably be removed from your care.

Back in the 1960s Lord Patrick Devlin, a prominent English judge, wrote a book entitled The Enforcement of Morals, in which he defended the position once held by the Victorian magistrate Sir James Fitzjames Stephen (pictured) that the government has the legitimate right to intervene in matters of morality. This position has come to be called "legal moralism" (though some of its critics would sneeringly call it "legal paternalism"). Many critics, most notably the great legal philosopher H. L. A. Hart, tried to refute him. The general intellectual fashions of the time ran very much in a liberal vein, and so it was commonly accepted by those who don't think very deeply that those critics scored a definitive victory. But they simply haven't. I do not have the space here to rehash this old debate, but I promise to do so in a separate posting in the near future.

2. "...that responsibility should belong to the church"

This is just an expression of the old canard that there is some necessary connection between religion and morality. There simply isn't. Plato ably destroyed that assumption in his Euthyphro when he asked whether the good is good because the gods approve of it, or if the gods approve of the good because the good is good in itself?

If the good is such because God approves of it, then what if God were to approve of murder and rape (as he seems to do in many passages of the Old Testament)? Would murder then become good? And can you really be said to be a good person if your sole motive for doing the right thing is hope for heavenly reward or fear of divine punishment?

If your answer to these questions is "no" - as I think it must be, then what need is there for God to serve as the foundation of morality?

3. "...that responsibility should belong to the church" (again)

The use of the definite article here should really make us nervous. Which church is the church to which Mr. Reynolds is referring? In using the word "church" he presumably means some denomination of Christianity. Which one? Hopefully not the Catholic Church, for given recent events within the Church in Nova Scotia, I wouldn't want to leave any child alone with a priest to be instructed in morality.

This is one subject where conservatives will simply have to bite the bullet: we live in a pluralistic society, where there is no established religion, let alone a church. As such, the only way we'll be able to get along in the long run is if we keep religion out of the sphere of politics and government as much as possible. This is where liberals are absolutely correct and where we conservatives need to shut up.

4. "The greater the distinction between morality and human rights, the better"

I must confess to not knowing what kind of concept a human right is if it is not a moral one. By appealing to human rights in his endeavour to keep the state out of the bedrooms of the nation, Mr. Reynolds has inadvertently got himself entangled deep within the thickets of the moral realm. If rights are a moral concept (which they are), and if the law is bound to respect and uphold them, then the law is inextricably bound up with morality. And once we are forced to make this admission, then why may not the law also concern itself with morality's broader magisterium?