The morality of criminalizing immorality

Great Debates
21

Of course. There are disputes and the matters of dispute change continually over time. My point though is that we do agree on what is detrimental to a fairly high degree. No one argues against either the illegality or the immorality of murder, assault, robbery, rape, fraud, and most of what other crime goes on. Disputes take place on the edges of this core of agreement. Disputes, I would argue, can only really happen with a significant core of agreement.

And disputes are not really a question of principles, but one of familiarity, at least in practice. This is why expliciting a principle is so difficult, because in a sense it doesn’t matter what the principle is in and of itself. Except insofar as it is a political move. Liberty, for example, is a quite valued moral and legal principle, but there many places where it doesn’t apply because everyone agrees that applying it in these places is stupid, like your liberty to drive on the left side of the road.*

The point of all this is that it is certainly not immoral to legislate morality, and as far as I can tell, in most disputes of this nature, both sides are claiming to have the moral high ground because if they didn’t, there would be no real force behind their claims.

*Again, Americocentric, but you get the point.

22

All those crimes you say we all agree o involve harm and I suggest that is why we agree. When there is no harm we disagree often.

I agree in some cases we need to as a society to agree to certain rules such as what side of the road to drive on, but in the OP I specifically was speaking of criminal law.

Again I disagree for this exact reason, both side claim the moral high road so remove morality and focus on harm.

23

But this is the point: If we can’t agree on what is detrimental, we can’t agree on what is harmful either.

24

I think I see where you’re trying to go with this. If I’m not mistaken, you are saying that there are too many moral codes out there that attempting to negotiate laws and whatnot with them is ultimately ineffective since both sides will claim the moral high ground. And so, you suggest using harm as the criterion in the hope that a more concrete, less negotiable perspective will avoid these sorts of disputes. Or am I still not following?

25

We criminalize drugs because, very simply put, they are extremely damaging to society–if you want to try to argue their not, you’ll have a heck of a time of it. Look, I’m not saying that the extensive use of alcohol across our country is a good thing–nor am I saying that there aren’t millions of people who abuse it to extremely disruptive and dangerous levels. Yet the fact still stands that drinking alchohol does not immediately merit being drunk and becoming a problem to society, which is why it is much more tolerated then drugs–drugs of which, at least in my knowledge(excpet for MJ, of which is really only used to become high) are only ever used in an atempt to get high.

…Well thats like saying “if anyone chooses that something is moral, then how do we know its moral?” If the majority of the country was atheist and we made laws around atheistic ideas, it would be the same deal. I see what your saying but can’t really agree, as I don’t fall in any sort of relativist schools of thought. Not so much that you do, but simply saying that declaring something immoral and illegal shouldn’t be nullified simply because there’s dissenting opinions.

26

That at least is a common basis that we can work with, nothing is perfect but it is far easier than diametrically opposed moralities.

27

Well first of all we need to be clear about the damage.
A. Much of drugs damage is because it is illegal. Gang violence is too a large degree to control territory to sell drugs etc.
B. Drugs are illegal and they are damaging to society and I doubt there would be any massive change to that if it was de-criminalized.
C. Many things blamed on drugs are falsely attributed. For example many people think that people get addicted to drugs and then their lives fall apart and while this does indeed happen it is more common that peoples live are falling apart and they turn to drugs to cope.
D. The most damaging drug due to it’s usage is by far alcohol and yet it is illegal.

And numerous drugs do not simply make you intoxicated either.

Lets be clear, alcohol is not legal because it is a kindler gentler drug (it isn’t) it is legal because it is part of our society and virtually impossible to remove. They did try and it failed and created a massive crime wave to boot. Alcohol is legal because it is not considered immoral by most, because most use it.

I am not saying anything with a dissenting opinion should be made legal, I am saying criminal law should be based on harm not morality because immorality is subjective.

28

As I’m trying to argue in another thread, morality is not arbitrary.
For the most part (and OK it’s a gross simplification), moral acts are those that benefit society and immoral acts harm society.
It’s unsurprising that groups would promote behaviour that aids the group and the punish harmful acts. Groups with no moral code would fall apart quickly.

In ancient days it was very simple: if you want to live in this fort, you must abide by our rules (and suffer punishment / expulsion if you don’t). If you disagree with our rules, that’s fine, but you can’t come here.

In the modern world, “territories with rules” cover pretty much all the Earth’s useful land, so it doesn’t seem like a free choice any more.

That’s the rationale, people can and will disagree on specific laws.

29

Well your definition of morality is similar to my definition to what criminal laws should deal with and that is harm.

I agree, the problem arises when people have moralities that are not seeming doing any harm. For example homosexual sex or other forms of non-reproductive sex.

Yep and especially in countries founded on immigration.

I would say the rational is that criminal laws are to be based on harm and if that fits with your idea of morality then great, but if it doesn’t we can still agree if it is based on harm.

30

I agree with all your points. Morality should be about harm to society, and certainly something like homosexual sex, between consenting adults in privacy, should not be illegal.

Society is moving in this direction, I think there are two reasons it’s not already like this worldwide:

  1. Morality is underpinned by our instincts of right and wrong (e.g. children get upset at having less cake than their peers, from a very early age and without parental teaching). Unfortunately people too easily get these instincts confused with others such as revulsion.
    “Since many things that I believe are wrong I find disgusting, every thing I find disgusting must be wrong”.

  2. Obviously, religion. As I’ve argued on these forums before, I think religions need to have some arbitrary, supposedly “moral”, rules. Things like not working on Sunday…they help you to feel a part of something, and like you’re doing God’s work. Unfortunately separating church from state is something every nation has had issues with. (Even in America that made it official early on :))

31

Sidestepping the definition of “morality,” I would say that it’s irrational and counterproductive to criminalize behaviors which do not harm others or harm the community as a whole. It’s a very bad idea, indeed, to give the state any kind of authority over anything that is essentially only an issue of religous/ritual/spiritual “morality.” Proscriptions against homosexuality, for instance (or against any kind of sex between consenting adults) are essentially archaic, tribal artifacts – superstitions and purity codes no different from dietary codes – with no rational justification or use in a modern, free society.

32

For all of you limiting your laws to “harm to society” surely would have to amend that to say “potential harm to society”. If not, then laws like drunken driving, attempted murder, and conspiracy would have to be repealed as well.

33

I think there’s a quite limited overlap between morality and legality.

In many cases, we won’t criminalise behaviour unless we consider it immoral – e.g. murder.

But we won’t criminalise all behaviour that we consider immoral – e.g. adultery. And this isn’t a matter of church-and-state separation. Most secular moralists would consider lying, for instance, generally or often immoral, but we don’t generally criminalise lying. We only criminalise it in specific circumstances where we can point to a social harm beyond the intrinsic immorality – e.g. perjury, fraud.

And conversely there are areas of criminal law which have no intrinsic moral content. You can criminalise driving on the left, as some countries do, or driving on the right, as other countries do, but there is no inherent moral content in the question of which of these to criminalise.

I suggest, though, that the illegal-but-not-immoral category is fairly sparsely populated. For the most part, we won’t criminalise behaviour unless we generally regard it as immoral. But we need more than simple immorality to justify criminalising behaviour; it has to be not merely immoral but also injurious to the community in a significant way.

And this isn’t a modern, secular, separation-of-church-and-state insight. The Papal States in Italy, whom nobody would accuse of being modern, secular or interested in separating church and state, did not criminalise prostitution, although it was undoubtedly seen as seriously immoral in Catholic thinking. In fact, they licensed and regulated brothels. And this is because, in the Catholic moral tradition, criminalising immorality, as such, is not a proper function of the state.

Protestants, by contrast, were more likely to think that it was. Luther, for instance, advocated the criminalisation of adultery. He was perfectly well aware that this wouldn’t prevent adultery, but in his view it would prevent the state/the community being involved in the complicity of condoning it. And this Protestant perspective may have informed a certain Puritanism in the American tradition in which it was seen as a proper function of the civil power to deter immorality by, for instance, banning the sale of alcohol, enforcing the Mann Act in a particularly vigorous way or attempting to criminalise fornication.

34

Endangering others is doing harm to others. So is intentionally attempting to harm them.

35

To a degree. I would be very careful with the term potential harm. I would want to deal with things where we by our actions or inactions put something in harms way.

36

  1. I get drunk at a local tavern and drive home with a .22 BAC. I weave all over the road, but successfully make it home without incident. Who was harmed?

  2. I fire a weapon at my neighbor and miss. He is listening to his IPOD and didn’t hear the gunshot. He walks back inside his home none the wiser. Who was harmed?

37

Is this limited to physical harms way?

38

I don’t think so, I am trying to think this through. Certainly harm is not limited to physical so I should not think this would be either.

39

I agree, “potential harm” is a reasonable restriction as well, but like smileybastard, I would be careful. This shouldn’t create a slippery slope (in this “Mind your own business” Utopia we’re creating). “Potential harm” should mean a material risk of some real harm (itself a material, undue intrusion on someone’s rights). The “potential harm” of someone smoking pot, and having that trigger a progression through harder drugs, where he might someday have to steal my HD television to fund his heroin habit, therefore pot should be illegal–um, no. The risk needs to be material and associated with a harm that is the direct and reasonably predictable consequence of the act.

It’s a practical necessity. The gunshot scenario you offered is right out, even if the “victim” is none the wiser. If we wanted to stretch the definition to be consistent, I suppose we could describe the absence of such restrictions as “the harm of living in a society where the risk of harm is much greater,” as it would certainly be if, for example, DUI was legal so long as you didn’t get in an accident. I think in such a society, our lives and behavior would be changed for the worse to guard against this greater risk. But it’s not too important a distinction to me–call it “no harm” if you’d like in such scenarios. As a practical matter, we need to make these acts illegal too, and if that’s inconsistent, it’s one of those reasonable “inconsistencies” without which personal liberties are nothing but navel-gazing debate topics.

40

In both those cases the potential harm is real and should be a criminal charge.