Morality Has No Place in the Law

By Sarah Braasch

“Surely if we have learned anything from the history of morals it is that the thing to do with a moral quandary is not to hide it.” —H.L.A. Hart

“This lesson is that the distinguishing characteristics of true law must be sought for somewhere else than in the nature of the authority from whence it proceeds, and in the certainty of the punishment by which its infraction is attended.” —Sheldon Amos

In loving memory of my baby brother, Jacob Michael Braasch (01/28/86 – 02/02/10)

“Morality has no place in the law.” I remember the first time I asserted this claim. In the fall of 2004, I was a reluctant guest at a book club meeting in LA, at which the assembled motley crew discussed a recent book on the gay marriage debate. I hadn’t read the book in question, and my unsolicited commentary came as something of a surprise, to myself included. I was met with a bevy of incredulous stares and, subsequently, protestations. How could I assert something so obviously preposterous, so patently ridiculous, and so demonstrably asinine? Almost immediately thereafter, I decided to change the direction of my life, to attend law school, and to become an international human rights lawyer.

At law school, I was met with more disdainful scoffing and eye rolling. Of course, law and morality are inseparable. Of course, morality serves as the basis for any legal/political system. Of course, a law is nothing if not a moral claim, a moral imperative, a moral prescription. In all of human history, had there ever existed a legal system, which hadn’t purported to further justice, as grounded in morality? And, if so, from whence would the legitimacy of the government derive? Why would the vast majority of the society feel any sense of moral obligation to conform to the law’s dictates? What is a legal norm if not a moral command, constraining the behavior of the citizens/residents, of whichever state/society, upon whom the law (moral code) is imposed? How could I claim otherwise?

I will begin by laying out my definitions of both law and morality, since in my opinion most debate is the result of misunderstandings over definitions and premises. I will not defend these definitions (well, maybe a little), because this essay purports not so much to define law and morality, as to show why and how to create a legal/political system devoid of conceptions of morality and communitarianism.

Law is the mechanism (usually a set of norms/rules with corresponding sanctions) by which we define interpersonal relations. Morality is the categorization of human behaviors as “good” and “bad”, which, I would argue, is a wholly personal, subjective exercise without recourse to objective moral truth or authority.

How is this not necessarily the same thing? In the mid-20th century, H.L.A. Hart, the father of modern legal positivism, argued the separability of law and morality in his seminal writings. Hart argued for the distinction between the law as it is and the law as it ought to be. Law does not cease to be law based upon one or another moral criticism. It is possible to study and practice law in a descriptive sense (how people do behave), instead of a normative sense (how people should behave).

Also, it is possible to use deontological (moral) language without making moral claims. As Hart pointed out, use of the word ought “need have nothing to do with morals”. One may use the moral language of ought and should (and rights and duties) to further a specific aim without the attendant implication of categorizing whichever human behaviors as “good” and “bad”. (The error theorist/non-cognitivist debate about whether we should refrain from the use of such language will not be addressed here.)

But, the legal positivists leave much to be desired. They concede far too much to the natural law theorists for my taste. Even H.L.A. Hart conceded an appeal to the overlap of law and morality at the moment of creation of a legal/political system. He questioned whether a legal system, on the whole, which did not espouse some notion of “justice” as its central aim, had ever or could ever exist for long, despite the brutal imposition of severe sanctions, because the vast majority of persons living beneath its reach would feel no sense of moral obligation to abide by its dictates. He asked whether the nature of law itself demands recourse to a bare minimum of the most basic and general moral precepts, such as equal protection. However, he largely dismissed the question as holding little interest for him and as an “innocent pastime for philosophers”.

Brian Leiter is anything but dismissive of this methodological debate about the nature of law itself. He describes the challenge posed to legal positivism by natural law theorist John Finnis as significant and outlines it as such: “If the very enterprise of understanding the concept of law requires positive moral appraisal of law, then it turns out that questions about the moral foundations of law can not be treated as conceptually severable from questions about the nature of law.”

I find the legal positivists disappointing and hypocritical. They forego one fantasy, but dare not forsake another. Even Hart. And, especially Leiter. Hart is a bit like an evolutionary biologist who doesn’t feel many qualms about not being able to explain the origin of the universe. Just because he cannot disprove the existence of God doesn’t mean he has to accept Christianity. But, despite his admonitions to refuse to address moral quandaries at one’s peril, I see him rather as a Christian who scoffs at the foundational myths of a Muslim while unable or unwilling to acknowledge the folly in his own foundational myths.

The legal positivists are the Stephen Jay Goulds of legal/moral philosophy. They espouse the NOMA position, i.e. they hold to the stance that descriptive/analytic legal theory (legal positivism) and normativity are Non-Overlapping MAgisteria, except for when they don’t, but they fail to acknowledge the usurpations of morality perpetrated upon the law and how the law suffers as a consequence. They are accommodationist agnostics, uncomfortable with identifying as atheists or noticing the lack of evidence for any objective moral truth or authority. Maybe it’s better to perpetuate the myth. Maybe we all really will take to raping and pillaging without the reassurance or threat of some objective moral authority looming large, to which we may seek recourse. Maybe our societies really will fall apart like a house of cards, if people realize that their foundations are nothing more than foundational myths.

I stake the case that burying one’s head in the sand is never a good idea. Nor is pretending to know things that we, in fact, do not know. Denying the existence of or refusing to deal with a philosophical quandary neither negates the dilemma nor ameliorates the situation in question. So, imagine my relief when I discovered the moral anti-realist philosophers.

The moral anti-realist philosophers, like Joshua Greene, deny the existence of objective moral truth or authority. Morality (the categorization of human behaviors as “good” and “bad”) is a wholly personal, subjective exercise. Any moral claims, which claim to be objectively true, are false. There is no objective moral truth or authority. Therefore, there is no objective legal truth or authority. I am not a legal positivist. I am a legal anti-realist, just as I am a moral anti-realist. Laws are not real, and neither is morality, and they certainly aren’t natural. The determination of legal validity (deciding whether or not any law or legal/political system is valid, just, moral, and, thus, merits adherence) is a wholly personal, subjective exercise, just as any moral viewpoint is a wholly personal, subjective exercise.

The most common retorts to this position, which I have encountered, are that: 1) this position is itself a moral claim, and 2) I have left myself in an untenable position in which I will never be able to justify my approbation or disapprobation of any other entity or act ever, and I cannot justify advocating for any legal/political scheme in particular or any legal/political scheme at all. I have condemned myself to anarchy, or, at least, absolute and universal moral relativism. If someone wishes to keep me as a slave, I can have no objection worth considering. If someone wishes to keep someone else as a slave, I can have no objection worth considering.

First of all, denying the existence of objective moral truth is a meta-ethical claim, not an ethical claim. Second, I am free to advocate for whatever I wish. I am free to condemn whomever I wish. I am free to try and convince as many others as possible to adopt my personal, subjective moral viewpoint. It is possible to advocate on behalf of my subjective moral viewpoint, informed by evidence and science and reason, while maintaining a moral anti-realist stance. Moral anti-realism does not condemn one to moral relativism or anarchy. It is possible to advocate for the establishment of a legal/political system without recourse to the myth of objective moral/legal truth. Greene’s dissertation, available on his website, lays out this position nicely.

But, these common retorts just seem like either fatuous delusions or disingenuous and specious sophistries. Because objective moral/legal truth or authority does not exist. And, there is no evidence that it does. And, in fact, there is a great deal of evidence otherwise. And, yet, we, or the vast majority of we, do, in fact, create and abide by and live under legal/political systems. We, or the vast majority of we, do, in fact, advocate for our personal, subjective moral viewpoints.

And, anyway, whatever happened to looking philosophical/moral quandaries in the face without flinching? When has burying our collective head in the sand ever made our problems better? Or, go away? When has pretending to know things that we do not know improved our lives?

Even secular humanists, rationalists, materialists, freethinkers and atheists can fall prey to that human, all too human thirst for order, structure, pattern, authority, and explanation. The noted “New Atheist” Sam Harris takes his turn at the fount of foundational myth in his latest book, The Moral Landscape, in which he advocates for a science of morality. He claims that, with the proper application of our reasoning faculties to enough factual evidence, we can access objective moral truth via the scientific method. His definition of “good” is that which promotes “well-being”, which he admits he is unable to define, and his definition of “bad” is whatever detracts from “well-being”. While he isn’t so foolish as to suggest that evolutionary biologists should be the new moralists, he rejects Hume’s contention that there exists an impermeable barrier between facts and values; that values are never objective; that we can never get an ought from an is.

This indulgence in myth is understandable, but regrettable. The objective moral/legal truth fairy is not going to save us, and no amount of data, experimental results, or observations will conjure her. This latest indulgence is a considerable threat to our secular, liberal, constitutional democracies. When religionists draw from the fount of myth, we are protected by the wall of separation between church and state. When scientists pretend to have in their possession objective evidence of moral truth, humanity takes a step backwards into the Dark Ages.

Facts reveal nothing about morality. Facts and evidence are always separated from moral viewpoints by subjective value judgments. To pretend otherwise is to play into the hands of the religionists, to open us up to the threat of tyranny, to call into question our concepts of individual civil, constitutional, and human rights, and to provoke a societal existential crisis. Instead of religious wars, we will have morality wars. Instead of prophets in possession of the one true revealed scripture/religion, we will have scientists who are able to divine morality from indifferent facts and extract policy from apathetic data.

Do we want judges engaged in gleaning nonexistent moral truth from the evidence presented in their courtrooms? The judiciary has been moving away from any incorporation of concepts of morality in judicial decision-making and as a valid basis for legislation. The line of recent cases, including Lawrence v. Texas and Perry v. Schwarzenegger, are explicit in their rejection of subjective moral viewpoints as a legitimate basis for legislation or the denial of constitutional rights, and also take the time to point out that the side advocating for the imposition of its subjective moral viewpoint upon others lacked any evidentiary basis for its morality. The District Court in Perry stated, “A private moral view… is not a proper basis for legislation,” and “Moral disapproval alone is an improper basis on which to deny rights,” as well as “…those individuals’ moral views are an insufficient basis upon which to enact a legislative classification.” The Supreme Court in Lawrence decided that the moral majority may not “use the power of the State to enforce these views on the whole society through operation of the criminal law”. Justice Sandra Day O’Connor’s concurrence in Lawrence was particularly scathing in its denunciation of the suggestion that moral disapproval, in and of itself, was a legitimate government interest. In Planned Parenthood of Southeastern Pa. v. Casey, the Supreme Court made plain the obligation of the Court, “Our obligation is to define the liberty of all, not to mandate our own moral code.” Let us not take a step backward after we have made such strides to eradicate any notion of morality from our jurisprudence.

Sam Harris also fails to grasp the nature of our democracy when he suggests that we need not pay heed to those ill-equipped to interpret factual evidence and to derive objective moral truth therefrom. We are constantly engaged in conversation with mob rule. The moral majority gets a say in how you and I live our lives. As far as Justice Scalia is concerned, the moral majority may dictate to you and I as they please, as long we are not claiming an explicitly and specifically enumerated constitutional right or membership in a constitutionally protected class, and he includes gays and women in the category of persons whose rights may be curtailed at the whim of the moral majority. Do we really want to say that, given enough evidence and reason, anyone can access objective moral truth? If you read the data the right way? If you perform the correct exegesis? No amount of evidence and reason will ever result in a definitive determination of objective moral truth, and to pretend otherwise is not only folly but dangerous.

As an example, consider the recent slew of suicides by young gay men, often after having been bullied, much publicized in the media. Much of the commentary focused on the statistically significantly higher incidence of suicide among gay teenagers than their straight peers. The higher incidence is a fact (a fact which is called into question by the cited article). But what objective moral truth is to be derived from this fact? And, what policy decision should result? Is the higher suicide rate demonstrative of the inherently morally reprobate nature of homosexuals? Does the higher suicide rate indicate that homosexuality is good? Bad? Does it indicate that homosexuality or the homosexual lifestyle is conducive to well being? How should we respond? Should we outlaw homosexuality? Should we outlaw homosexual sex acts? Should we segregate gay teens from straight teens? Should we implement a Don’t Ask Don’t Tell policy in public high schools? On the campuses of public universities? Should we attempt to employ gene therapy to eradicate homosexuality? Should we enact hate speech legislation, which criminalizes gay slurs?

I don’t know about you, but I don’t want to have to care about my uneducated and ill-informed next door neighbor’s personal, subjective moral opinion about my life choices, and I don’t think I should have to care. No matter how much evidence he thinks he has in support of his personal, subjective moral viewpoint.

So, I have been thinking a lot about how to devise a legal/political system, which eradicates any conception of either morality or communitarianism. Don’t get me wrong. The moral majority serves its function in our current (American) democracy. The moral majority fills the void of authority left vacant by the lack of objective moral/legal truth. The moral majority, as expressed by the electorate, is the majoritarian half, representing the interests of society, of the precariously balanced equation in the conversation between the majoritarian (the electorate, the moral majority, culture) and counter-majoritarian (the judiciary, the Constitution, the Bill of Rights, case law) elements, which is our system of government.

But, wouldn’t we be better off without having to constantly be in conversation with mob rule? Wouldn’t we be better off without having to constantly wage a fight to hold back the tide of moral majoritarian tyranny? Wouldn’t we be better off without the threat of theocracy constantly looming large over our heads? Wouldn’t we be better off without religious/moral communitarianism in a pitched battle with secularism and individual rights, especially women’s rights?

Sam Harris wants to defeat religion and the threat it poses to democracy and to humanity. And, so do I. But, in a paradoxical twist, which he seems unable to see, he, too, wishes to perpetuate a myth, which will only serve to strengthen the resolve and the position of the religionists and the cultural relativists.

But, how to create a legal/political system, which balances the needs of the individual and society, without resorting to false notions of morality and communitarianism? I think the answer is to create a legal/political system based upon game theory to maximize individual liberty.

The choice of maximizing individual liberty is not arbitrary. And, it isn’t about creating a moral code, which holds liberty in higher esteem than the values of happiness or well being or goodness or utility. It also isn’t about a classical libertarian’s or an anarchist’s liberty fetish. It is about trying to replicate our current form of government without resorting to a relationship with mob rule. Our current majoritarian / counter-majoritarian push-pull is a crude approximation of a legal/political system based upon game theory to maximize individual liberty.

The interests of society will fall out of the exercise. This is the case, because I am not free to live my life as I wish without a minimum threshold level of security and safety and order. I wouldn’t be terribly free to live my life as I desire in the midst of chaos or anarchy. I am not terribly free to live my life as I see fit, if I can’t afford to feed and clothe my children, if I’m dying for lack of decent healthcare, or if I can’t get a decent education. And, I’m not going to be at liberty to pursue my individual goals, unless there are minimum guarantees in place for my societal peers as well.

Unlike happiness or well being or, even, utility, liberty may be assessed objectively, not subjectively. Is one or is one not constrained in one’s physical behavior? This is not a subjective assessment. The vagaries of the mind are not in play.

While I recognize that I can advocate for the creation of an amoral legal/political system, which employs deontological language, based upon my subjective moral viewpoint (which is informed by science and reason and evidence) that I wish to live in a society structured as such, without pretending to be acting under the authority of some objective moral/legal truth, how will I ever convince anyone else to adopt my approach?

This is like asking how the very first human society came into being. Or, like asking how life or the universe began. We exist. We live in societies. We live under human-devised governments. Societies evolve. The law evolves. Culture evolves.

The old mind games and tricks don’t work any longer. We’ve seen the man pulling the levers behind the green curtain. We know that our foundational myths are just that – myths. We will adapt and evolve or we won’t survive.

Maybe we should be asking how we are going to continue to convince everyone to keep pretending to believe in our foundational myths.

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