Legislating for the moral high ground
(Law and morality, Part 2)

All law-making is an expression of values, because all law-making involves choice - and very often the priority to be given in allocating scarce public resources.

More particularly, some laws express, quite forcefully, a self-consciously moral stance. The classic example is prohibition in the US in the 1920s. Prohibition in the US was not about ending the undoubted social damage caused by alcohol consumption, it was about white ango-saxon Protestants expressing superiority of their puritan, Protestant tradition to that of the newly arrived harder-drinking, Catholic eastern-European and Mediterranean peoples. If it had been about ending drinking, there would have been effective enforcement. The myth of the “Untouchables” aside, customs and police agencies were never given the funding they needed, even to pay their officers well enough that they’d be less likely to take bootleggers’ bribes. Like the three-strikes law it was one which existed to express the superiority of one social group over another, it did not aim to end drinking, just to make criminals of a group of whom the legislative majority disapproved - unless they changed and assimilated into the dominant culture of the law makers.

The realisation that all law is, in some sense, a moral expression came to me with the recent Supreme Court case in the US striking down sodomy statutes (more on that tomorrow). It is a move that has been celebrated, or decried, as ending any morals legislation and opening the door to laws allowing same-sex marriages.

My own reaction was to think: “Great, morals legislation is bad”. Then I realised that as a supporter of homosexual marriage, many would see this as moral legislating, whereas I would see it as simply serving a principle of legal equality. Law-making, then, is always moral: it’s always about value-choice.

You cannot legislate social change any more than you can legislate back the tide, but people still believe in laws’ educative effect. Both advocates and detractors of same-sex marriage can argue it would “send a message” that such relationships are socially acceptable; differing only on whether this is a good thing. People thus use legislation to express the superiority or correctness of their value-choice.

I don’t think “morally neutral” law is really possible. Even fields such as taxation and expenditure are value-laden: consider the uproar about taxing books and sanitary items for the first time under the GST, consider the constant clamouring for more health and education funding.

We do have to make moral choices in legislation: and human dignity, equality and diversity are moral principles. It’s in that context I want to write tomorrow about the Supreme Court decision and same-sex marriage.