I’m writing this post not as commentary but as one who doesn’t really know what to think about a topic. I’ve been contemplating for weeks now what exactly defines the limits of the law. We have various actions we consider immoral. Within immoral actions, some are illegal, and some are legal. Where do we draw the line? How do we decide which immoral actions to tolerate and which ones to outlaw? I will take for granted that no one here is Lord Devlin[ref]Lord Devlin was British lawyer, judge, and jurist who wrote that “I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter.”[/ref] (or Judge Dredd) and simply does not believe the law has limits.
As the SEP entry on the limits of the law notes, the harm principle, as articulated by John Stuart Mill, is the best known answer. I know Nathaniel isn’t a big fan of the harm principle, but it does seem like a good place to start a conversation on the limits of the law. The Harm Principle may not end up fully capturing why we make some actions illegal and others not, but it does seem to define the most basic level of law. If absolutely nothing else, we have to keep Jones from murdering Smith.
If we accept the harm principle, the big question then is defining what exactly constitutes harm. Murder once more is a good place to start. Direct, grievous, bodily harm seems easy enough to identify as harm. But what about more diffuse harm like societal harm? If we do recognize diffuse, societal harm, how does one draw a line? We obviously cannot prevent all societal harm. How we do decide what to combat and what to leave alone? Is it simply another utility calculation of greater and lesser harms? And what of self-harm?
A further consideration is when, in attempting to prevent harm, we end up creating more harm instead. The SEP entry addresses this idea as well. Prohibition of alcohol increases alcohol consumption and adds criminal elements to a previously legal enterprise. Complete illegalization of prostitution drives vulnerable women furthe
r underground and away from law enforcement. To some extent, these problems can be avoided by more intelligent lawmaking (like the Nordic Model on prostitution, which protects prostitutes by making the purchase of sex illegal while the sale of sex is legal), but intelligent lawmaking can only go so far in the continual struggle with human nature. For example, I don’t think any amount of intelligent lawmaking would have made prohibition work. In effect, there seems to be a certain amount of pragmatism to lawmaking. We only have so many resources. We cannot change human nature. At what point do we surrender and accept a certain tolerable amount of harm?
Stepping away from the harm principle, what role does morally right action and social cohesion play in lawmaking? The idea (apparently called legal moralism) seems to have been totally banished from the modern mind (particularly proponents of the harm principle), but I don’t know if we can simply throw it out without a second thought. We shouldn’t go so far as Plato to suggest that the state should regularly and actively enforce the cultivation of moral virtue, to the point that there simply is no distinction between the moral and the legal, but I think there’s room in between Plato’s Republic on one end and a society whose laws are totally indifferent to virtue and social cohesion on the other end. Here I think Lord Devlin is more on target even if I don’t agree with his overall view:
For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.
I also suppose I tak
e the ancient view that virtue and social cohesion are one and the same. Moral virtue produces harmony both in the individual person and society at large. Immorality produces disharmony in both the soul and society. But, as mentioned earlier, I recognize the need for pragmatism in this matter. The attempted enforcement of virtue can and often does produce the opposite effect or simply no effect at all. So we get neither virtue nor social cohesion and we waste state resources to boot.
On the topic of legal moralism, the SEP entry starts hitting on a subject that does conflict me greatly, the topic of marriage. I realize people are a bit tired of this topic, but I think it’s greater fodder for contemplation on the limits of the law. On the one hand, I recognize marriage as having specific characteristics (monogamous, heterosexual, and permanent) and purposes (the good of the spouses and procreation of children). These characteristics and purposes are central to the well-being of both individual persons, especially children, and society in general. But then I jump over to another topic, contraception, where I believe a simultaneously personal and societal harm exists, and I have zero interest in making contraception illegal. So what gives? How do I differentiate any legal objections I might have to gay marriage or divorce or polygamy from my total legal acceptance of contraception?
I can already tell this entry is a bit of a mess. I’m jumping around, mixing and matching moral outlooks (like utilitarianism and more virtue-based outlooks), not defining or exploring presuppositions, etc. It’s pretty bad. But I think this mess is still useful for generating a discussion. Let me know what y’all think.
I could say welcome to a lifetime of study and puzzlement. But let me more directly point out that there are layers and complexities still to be explored. To make this real, consider for example a number of contentious “life and death” matters: abortion, physician assisted suicide, felony murder (the idea that if somebody dies during the commission of a felony that will be treated as murder even if it might otherwise be an accidental death). At one level, ask yourself whether the woman, the physician, the felon, should go to jail for murder? (That’s usually what the most casual ‘against the law’ means.) In your opinion. Applying principles of harm, of moral suasion, of societal cohesion, of whatever. Or is a short sentence, or a fine, or time in the stocks, or name in the newspaper, or branding, or a law on the books that is seldom but more or less selectively enforced, more appropriate? To meet your measure of harm or moral suasion or societal cohesion? At another level, ask whether this is a 51/49 kind of matter, or an 80/20 kind of matter? In other words, whether talking harm or morals or society, it’s pretty clear that opinions differ. Is a simple majority view enough to put the woman, the physician, the felon, in jail? Or would you want an 80% consensus (regarding harm, or morals, or society) before taking such action? At yet another level, living in an inescapably uncertain world, ask how certain do you want or need to be? A burden of proof question (“beyond a reasonable doubt”?) but more broadly a type I/type II error question, a resource allocation question (how would you prioritize limited police time), an unintended consequences question, and so on.
I would basically echo what christiankimball said above. Twenty-pound-brain types have been delving into these philosophical questions for centuries, and the issues are still thorny and difficult.
My own two cents would be to point out that the West has completely abandoned the concept of “natural law” — an ethic that used to permeate and inform the positive law. (There are a few, but only a few, modern champions. Professor Robbie George is one prominent example.) Now we only have positive law, and some folks cheer that notion, but the problem with only have positive law is that we assume that we humans can address these issues by statute. Or, that human nature can even be changed or fiddled with by statute. Edmund Burke would profoundly disagree. Law can be viewed as a function of culture. If the culture goes rotten, so goes the law.
One reason we have mostly abandoned natural law: To some (how many?) it seems that universals are quickly exhausted and that the next level of natural law analysis would be difficult to distinguish from choosing a religion or choosing among religions. Another layer of question and challenge.
“At what point do we surrender and accept a certain tolerable amount of harm?”
There has to be a point where laws stop and agency takes over.
Thanks for that piece, Bryan. I liked it very much, with one small exception.
Regarding your references to Prohibition (and yes, I know they are incidental to the whole article, but this topic just sticks in my craw):
“Prohibition of alcohol increases alcohol consumption and adds criminal elements to a previously legal enterprise.”
And:
“I don’t think any amount of intelligent lawmaking would have made prohibition work.”
I get frustrated when Prohibition is understood by most Americans as an epic failure. Since Prohibition was ultimately repealed, that has become the consensus view, and I believe an overly-simplistic one. In reality, it was neither an epic failure nor an epic success.
First, there is great debate over whether consumption of alcohol increased or decreased under prohibition. Many studies (e.g. here, here, and here) do show that there was a decrease. Undoubtedly, lawlessness increased which has its own not insignificant consequences. As with any law there are trade-offs when it is put into practice. I’m not certain that the trade-offs in Prohibition were worth it, just as I am not certain that repeal of the amendment was the right choice. Only an alternate timeline in an alternate universe (or God) could really tell us what America would look like today if Prohibition had not been repealed.
Second, that entirely depends on your definition of “work” (as in “did Prohibition work?”). By many measurements (see above links), prohibition DID work. Not perfectly, and not without its own terrible side effects, but that’s where the Thomas Sowell point, “there are no solutions, there are only trade-offs” is the best answer.
Great input Nate! I constantly get annoyed at people for possessing massively over-simplified views of history, so you’ve helped me fix a hole in my historical knowledge today :D
Also, that short video of Sowell is great. I have it bookmarked now.