Peter Espeut | On legislating morality

On October 7 (Maturing Moral Reasoning) I continued my challenge to The Gleaner’s legal and constitutional argument that the “right to privacy” by itself justifies the legality and morality of acts committed in private – in the bedroom or elsewhere. I stated that I believe that argument to be foolish!

From the many comments posted to that column and others, I concluded “it is clear that many Jamaicans have the ability to reason through simple and complex moral issues, discerning which principles are valid in coming to sound ethical decisions. Others remain at the level of empty sloganeering (right to privacy, right to choose, own body, who to love, privacy of bedroom) etc.”.

My erstwhile schoolmate and colleague columnist – learned counsel Gordon Robinson – quickly penned a rebuttal on October 11 (Law in Society) by trotting out another slogan masquerading as a moral dictum, usually stated as: “You can’t legislate morality”.

“My perspective on Law in Society hasn’t changed. All historical attempts to legislate morals have failed miserably. The fundamental question remains: whose morals should Government legislate?”

As the argument has been framed, “you can’t legislate morality” means that we can make all the laws we want to outlaw immoral actions, but that will not prevent immorality in society.

Making murder illegal has not prevented Jamaica having one of the highest murder rates in the world! Also illegal in Jamaica are rape, robbery, fraud, bad driving, and pollution of our rivers, but all these acts take place every day.

LAWS ARE FAILING

If the only or main purpose of law is to eliminate antisocial behaviour, then our laws are indeed failing. Maybe learned counsel should argue that all historical attempts at legislation have failed miserably!

But does this mean, therefore, that human societies should cease to pass laws? Surely that is not what learned counsel is suggesting?

Making an act illegal makes doing it punishable at law.

Some illegal acts have nothing to do with morality: whether we drive on the left or the right is neither here nor there, as long as we all do the same thing. The existence of a law that says we must drive on the left does not prevent taxi drivers and minibus drivers from doing the opposite, and anyone who thought so is naïve.

Effective enforcement of laws probably makes a bigger contribution to eliminating antisocial behaviour than the passage of a raft of laws.

But much of public law is an attempt to legislate morality – to promote “the good” and to reduce its opposite. Every law and regulation that is proposed, passed, and enforced has inherent in it some idea of “the good” that it seeks to promote or preserve.

For the good of those who live in the society, laws must be passed to enforce the right to life and personal safety. For the good of the economy, laws must be passed to seek to order the behaviour of individuals and organisations and to define and protect property rights. For the good of the polity, laws are passed to define the structure of government by ordering power – establishing and distributing authority and power among government actors and between the state and citizens. Law also serves the good by providing the substantive and procedural tools needed to resolve disputes peacefully, promote accountability, and to change the rules.

Without law promoting morality – “the good” – there can be no public order. Indeed, no governing authority can in any way be understood to be morally neutral.

The truth is that we must try to legislate morality!

Now whether law will actually achieve public order depends upon several other things, including effective detection and prosecution, the demonstration effect, and the availability of information.

HAVE THE LAW

But first we must have the law. We must pressure our lawmakers to legislate against immoral behaviour like political corruption and malfeasance.

In Jamaica, there is no law criminalising nepotism, cronyism, breaching procurement guidelines, and benefiting from blatant conflicts of interest. The few anti-corruption laws we have make bribery, graft and influence-peddling hard to detect. When detected, resignation, suspension on full salary, or retirement on full pension seems to be the only penalty.

Civil rights activist Martin Luther King had this to say on the subject:

“Now the other myth that gets around is the idea that legislation cannot really solve the problem and that it has no great role to play in this period of social change because you’ve got to change the heart and you can’t change the heart through legislation. You can’t legislate morals. The job must be done through education and religion. Well, there’s half-truth involved here.

“Certainly, if the problem is to be solved then in the final sense, hearts must be changed. Religion and education must play a great role in changing the heart. But we must go on to say that while it may be true that morality cannot be legislated, behaviour can be regulated. It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also” (Taken from Martin Luther King, Jr’s address at Western Michigan University, December 18, 1963).

Now here is where I agree with learned counsel:

“The fundamental question remains: whose morals should government legislate?”

And I would add: Which morals should the government legislate?

Adultery may be grounds for divorce, but it is not a crime. For some, eating pork is highly immoral, but despite the influence of Rastafari, pork-eating is not yet illegal in Jamaica.

We will not resolve the issue of whether buggery should continue to be criminalised with slogans like “You cannot legislate morality”; or “government should not interfere with what consenting adults choose to do in the privacy of their bedrooms”. Facile sloganeering is no substitute for sound ethical analysis using logical methods advanced by Plato, Aristotle and many others long before the foundation of the Christian religion.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com