The
statement “You cannot legislate morality” is one of the most quoted,
yet intellectually shallow, statements that people make today…and yet many do still
make it. So, what I want to address in this piece is the reasons why people
make this statement and then dismantle their objection to legislating morality
using three pillars: first the Bible, then western legal tradition and then a
bit of classical philosophy.
So why do
people say it? I think there are three reasons, mainly. Firstly, they mean that
a law cannot force a person to love their neighbour, desire righteousness,
or have a pure conscience. You can compel external compliance, but you
cannot regenerate the human heart. Secondly, they mean that in a diverse,
secular society, it is illegitimate for one religious group to impose its
specific moral code (e.g., Sabbath observance, dietary laws) on everyone else
via state coercion. You cannot mandate religion in other words. And lastly it
is because they believe it is ultimately ineffective to legislate morality.
Some people think that if a law outpaces the moral consensus of the people, it
will be widely disobeyed and breed disrespect for the entire legal system.
On the
surface, these points sound reasonable and there is even an element of truth in
them. However, they commit a catastrophic logical error because they
confuse the instrument of enforcement with the nature of the law
itself.
The Bible’s
Take
According to
the Bible, law is intrinsically moral. You cannot separate law, at its base,
from morality. They are intertwined.
First, the
Mosaic Covenant is a unified legal-moral-theological code. The 10 commandments
do not necessarily distinguish between "spiritual" sins and
"civil" crimes. Idolatry, murder, theft, and covetousness are all
legislated because they all violate God’s moral character. When the prophets
condemn Israel, they do not criticise the existence of religious law;
they condemn the hypocrisy of keeping the rituals while neglecting
the "weightier matters of the law: justice, mercy, and faith"
(Matthew 23:23). Jesus himself affirms that by his life and ministry the law is
not abolished but fulfilled, and he re-interprets it to govern internal states,
such as re-casting anger as murder, and lust as adultery, proving that morality
is exactly what law is meant to address.
Second, the
New Testament explicitly defines the purpose of civil government in moral
terms. In Romans 13:3-4, Paul writes that the ruler "is God’s servant for
your good" and that he "does not bear the sword in vain.” As we know,
or at least should know, God is not saying here that the state has the right or
authority to determine what is good, but rather that the state is
institutionally ordained to punish evil and praise good. The very
categories of "good" and "evil" are moral absolutes. If the
state cannot legislate morality, it cannot fulfil its God-given mandate to
restrain wickedness. Furthermore, 1 Timothy 1:9-10 states that "law is not
laid down for the just but for the lawless and disobedient, for the ungodly and
sinners..." Hence, for Jesus and Paul, as well as Moses, the law exists
precisely to define and curb moral transgressions.
A law that
claims to be morally neutral is a law that abandons its divine purpose. To
refuse to legislate morality is to refuse to restrain evil, which is itself a
profound moral failure.
Western
Legal Tradition
The Western
legal tradition does not originate in simple pragmatic social contracts, in
fact, these “social contract” ideas can be said to have been an attempt to
subvert the traditional view of western law and authority, that it stems from
God. The basis of western law, particularly in Western Europe is the fusion of
Roman jurisprudence, Greek Philosophy, Germanic custom, and Biblical Christian
natural law.
Sir William
Blackstone, the 18th-century jurist whose Commentaries on the Laws of
England is the bedrock of the Common Law, including Australian law, stated
unequivocally, “Upon these two foundations, the law of nature and the law
of revelation, depend all human laws; that is to say, no human laws should be
suffered to contradict these.”[1] Blackstone argued
that a human law that contradicts the moral law of God has no binding force.
Historically,
the West did not ask “Can we legislate morality?” In fact, anyone who said
we could not would have been laughed out if the legislature. Rather it asked, “Which
morality is truly just?”, at least when it was at its best. The abolition
of slavery in the British Empire (1833) was not an act of economic efficiency;
it was the legislative enforcement of the moral proposition that all humans
bear God’s image and are therefore valuable. The prohibition of murder,
perjury, and theft are all moral prohibitions before they are legal
ones. The very concept in our law codes of malum in se (wrong or evil
in itself) versus malum prohibitum (wrong because it is prohibited by
legislation) depends on an objective moral order existing prior to
the statute. Western law is based on the idea that we pass laws because they
are good or at least should be. It is a moral act.
Every law
against fraud, assault, or breach of contract is a legislated moral judgment.
If we truly could not legislate morality, we would have no law against rape, because
rape is not a violation of a "procedure"; it is a violation of the
moral dignity of a person. It is because we honour that human dignity and
sanctity that we say that rape is evil and should be punished. To say "you
cannot legislate morality" is to undermine the moral basis of our own
legal codes. The Bible said the purpose of law is to retrain evil and the
western legal tradition has sought to apply it in this way.
Western
Philosophy
Philosophically,
the statement collapses under its own weight. It is a meaningless statement.
Aristotle, in
Nicomachean Ethics, argued that the polis (state) exists not merely
for the sake of living, but for the sake of living well. The legislator’s
task is to make the citizens good by forming their habits through law. For
Aristotle, a state that refuses to cultivate virtue is a perversion of the
political community.
Thomas
Aquinas synthesised this with Christian theology, formulating the
hierarchy of laws, that is: Eternal Law or God’s reason, Divine Law or
that which is revealed, Natural Law or human participation in that reason,
and Human Law which is the statutes or decrees of a government.
Aquinas argued that human law is valid only insofar as it derives from Natural
Law. A human law that contradicts Natural Law is lex injusta non est
lex which means an unjust law is not truly a law. This forces the
jurist or the legislator to constantly ask themselves, “Is this statute
morally good?” This proves that legislation is inherently a moral exercise…or
at least that it should be.
Think about
it this way; from a western philosophical position, all laws are meant to be an
extension of people created in God’s image exercising that Imago Dei in society
for the cause of justice and righteousness. Hence, to say that you cannot legislate
morality is to reject the very understanding of law passed on to us by our western
heritage. The Bible says that purpose of law is to restrain evil, the western
legal tradition has sought to use it in this way, and western philosophy has
said to do otherwise is to act unjustly.
If law is not
rooted in an objective moral standard, it degenerates into sheer will-to-power;
might makes right. As Dostoevsky famously foreshadowed, "without God, all
things are permitted", and that is the inevitable endpoint of a legal
system that pretends morality is a private matter and should have no bearing on
the law. The state cannot be morally agnostic; by wielding the sword, it
necessarily takes a moral stance. In fact, to argue the state should not legislate
morality will inevitably lead to alternative moralities simply taking the place
of the previous ones. In fact, the very act of passing law will both be guided
by the moral codes of the law givers and will create a simulacrum of morality
in society anyway. It is unavoidable to include moral judgments in law making.
Conclusion
The phrase
"You cannot legislate morality" is a category error. Yes, just
because you pass a law does not mean you will change hearts and mind. The law
cannot force a sinner to repent and love God. That role belongs to the preaching
of the word and the work of the Holy Spirit.
Yes, laws can
go far too far and become oppressive. We see that Jesus criticized the
Pharisees for just this sort of burdensome approach to law in his day. A
prudent approach requires wisdom and demands boundaries.
But the law
absolutely must legislate morality, because justice itself is a moral concept. It
is in fact a foundational moral concept. Every time a parliament criminalises
human trafficking, enforces a contract, or upholds the sanctity of life, it is
making a definitive moral claim. And it very much should.
The only
legitimate question is not, “Should we legislate morality?” Those who ask
that lack sense. The truly legitimate question is, “Whose morality
will we legislate, and on what authority?” I have long argued that there are
only a few sources for basing your approach to law: the Bible, ancient law
codes, other religions or philosophies and the mind of modern man. There are no
other choices. The Bible should not be the minor partner in your selection, as
it has often being shown to surpass human efforts at establishing justice.
To the
Christian, when we ask whose morality should have the most authority, the
answer is simple: the eternal, unchanging moral character of God, which is the
only sufficient foundation for a just, stable, and truly free society. To
abandon that foundation in the name of "neutrality" or “secularism” is
not enlightenment; it is intellectual insanity. It leaves the courtroom
vulnerable to the tyranny of whichever mob holds the loudest megaphone. Which,
interestingly, is what we see transpiring in our own western nations today,
more and more. Funny that.
List of
References
