What do we mean when we say, “You cannot legislate morality”?
Surely, legislation should not be ambivalent to right and wrong. Law builds upon the concept of justice. Is not justice derived from morality?
Sometimes, people simply mean that government cannot force us to be good. In other contexts, the statement signals a distinction between what is objectively wrong, like killing someone, and what is subjectively wrong, like swearing in public.
Yet much of the time it can be hard to discern exactly what someone means when they say morality cannot be legislated. The term is used on both the Right and the Left, by social conservatives and social liberals, by people on opposite sides of the same issue. On the one hand, you might have a conservative who uses the term to argue against redistribution of wealth while standing opposed to gay marriage and abortion. On the other hand, you might find a leftist who uses the term to argue in favor of gay marriage and abortion while seeking to seize money which they did not earn.
What gives? Does the term prove completely subjective? Does any given person simply want their sense of morality enforced while the other guy’s sits ignored?
It shouldn’t surprise us to find confusion whenever morality is invoked. People’s sense of right and wrong certainly varies and will affect their public policies. Perhaps recognition of that fact fuels the notion that morality ought not be legislated. Perhaps we think, “In a free country, we have the right to decide right and wrong for ourselves.”
Of course, that sentiment fails upon its first application. A murderer might think he is right, as might a thief or a rapist. Hitler thought he was right. Perhaps then, morality by whim is not a pillar of true freedom.
Upon acknowledging that some kind of morality must inform legislation, a most uncomfortable question arises. Whose? Should the morality informing legislation be dictated by the church? Should it be a consensus of “experts”? Should it be put to a purely democratic vote? Who has the right, and by what authority, to tell another what they may or may not do?
Historically, governments have derived their authority and their sense of morality through entirely subjective and arbitrary means. The king is so ordained by God. Better men should govern lesser ones. The majority should get their way. These approaches are united in their disregard for individual rights.