Legislating Morality

 by Carl Watner
Number 115 – 4th Quarter 2002


[Editor’s Note: I first read about Legistlating Morality an offering of the Conservative Book Club. After looking at the book I was intrigued by the authors’ defense of their thesis, which they summarized as: “(1) Legislating morality is literally unavoidable (morality is always legislated), and (2) Americans should legislate the morality common to us all – the one expressed in our Declaration of Independence, the Constitution, and until recently, the laws of our land and decisions of the Supreme Court.” (p. 8) Read on to find out why I believe “legislating morality” is neither wise, legal, or possible. For those interested in ordering a copy of Legislating Morality contact Bethany House Publishers, 11400 Hampshire Avenue South, Minneapolis, MN 55438 (Tel. 1-800-328-6109)]

May 29, 2001

Dear Dr. Geisler and Mr. Turek:

I have read and re-read your book Legislating Morality (1998). In your “Conclusion” you ask readers to offer a well-reasoned rebuttal if they disagree with you. I believe that “legislating morality” is neither wise, legal, nor possible. The standard by which I answer these questions is that of the natural law, which embraces the commandments against murder and theft, and, more generally, prohibits all forms of fraud and violence. In short, the natural law standard demands that we leave others in peace unless they first trespass against us. Voluntaryists advocate coercive government be abandoned since it is at odds with this standard because it imprisons peaceful people for violating its political laws and for not paying the taxes it levies. Voluntaryists also believe that all of the positive things that government does can be provided in a voluntary manner on the free market. So in criticizing your arguments, keep in mind that I am not just critical of your advocacy of “legislating morality,” but also questioning your implicit acceptance of the institution of coercive government.

In order to keep this “Open Letter” reasonably short, and in order to keep from duplicating what I have already published on this topic, I ask that you at least read over the highlighted sections of the articles in two issues of The Voluntaryist (a newletter I have published for the last 19 years), which I am enclosing. The articles are: “Vices Are Not Crimes” and “Libertarianism and Libertinism” (from Whole No. 77) and “Myths and Truths About Libertarianism” (from Whole No. 95).

I would like to make four main points in this “Open Letter”. The first is that virtue cannot exist at the point of a gun. The second concerns the question of when individuals are justified in using physical violence in their social relations with others. The third point is: what happens to our society when our government is taken over by a crowd of power-seeking, corrupt libertines? Finally, the fourth point relates to what Lysander Spooner called the absurdity and criminality of lawmaking.

I. Can an action be moral if the actor is threatened with violence or coerced to act in a certain manner?

This argument should not be hard to follow. If I am compelled under the threat of being jailed not to take drugs, how can my actions be called virtuous? Virtuous behavior to be virtuous must be free of the taint of being caused by coercion or coercive threats. Virtuous behavior must be freely willed by the individual in question. Please read the last half of Myth 3 in “Myths and Truths About Libertarianism,” which explains that “compelling moral actions or outlawing immoral actions” cannot foster the spread of virtue. Therefore, legislating morality “robs us of the very opportunity to be moral.” True virtue consists in not doing right, but in freely choosing to do right.

II. What is the proper role of violence in society?

In the first section of “Libertarianism and Libertinism,” Walter Block explains that “only rights violations should be illegal.” In other words, individuals may only rightfully defend themselves and use or threaten violence against others when the boundaries of their person or property have been trespassed against. There are many situations where we may consider ourselves harmed (eg., witnessing a pervert or prostitute in the act of soliciting), but unless our rights of person or property have been violated, we are not justified in resorting to violence (e.g., to prevent her from seeking customers). Even then, as Block says, violence is justified – not because of the depravity of a pervert’s behavior, but rather – because the pervert has initiated violence. Thus when a person who has drunk too much whiskey begins to threaten or violate your person or property, you are justified in using violence to compel the drunk to stop. What you are justified in stopping is the criminal violence, not the drinking. If the drunk were to stay in a drunken stupor in the privacy of his home, neither you nor I would be justified in preventing his drinking. In Legislating Morality you advocate placing people in jail if they do not behave in ways which you deem appropriate – regardless of whether or not they have committed a boundary violation or trespass. This violates the natural law standard that unless a person has first initiated violence that person should be left in peace.

III. The very existence of government makes it far easier for “bad” men to exert their influence over society.

One of your constant themes in Legislating Morality is that government laws exert a profound influence on the morals of society. As you put it, “many people believe that whatever is legal is moral,” and the laws “often help change attitudes over the long term.” [p. 37] You urge that we get the right men into political power, so that they can pass the rights laws to set society back on track. Consequently, when the wrong types of action are legalized by the government, people are more inclined to do them. Wouldn’t it be better to abandon government altogether, and rely on strong voluntary social institutions – such as churches, schools, and families – to set high standards of morality? Then there would be little chance of having a Bill Clinton’s immoral behavior reach the attention of people all over the world. As it was, countless numbers of American children received the impression that his perverted sexual behavior was perfectly acceptable. The existence of government was the only thing that made such an event possible.

IV. The problem with “legislating morality” is that “common sense and reason tell us that nothing can be right by legislative enactment if it is not already right by nature.”

In your book, you point out that “there is a real right and wrong, and that real right and wrong is external to ourselves. … [W]e don’t determine right and wrong, we discover it.” [p. 114)] “[T]he morals [we are] advocating are not [ours] – [we] didn’t make them up. [We] didn’t make up the fact that stealing is wrong, that murder is wrong, that abortion is wrong, any more than [we] made up the fact that 2+2=4!” [p. 213] I agree with you, but believe that objective natural law/morality actually casts doubt on the necessity of government and government legislation. As Epictetus, the Stoic, pointed out: if the government directs people to do something that reason demonstrates is contrary to the natural moral law (as has happened plenty of times in history), the people should defy the government. On the other hand, people do not require government, if it merely repeats what their reason would have told them to do anyway.

The following comments were written by an American constitutional lawyer in 1877. In his article “Against Woman Suffrage,” Lysander Spooner wrote:

The only law that any human being can rightfully be compelled to obey is simply the law of justice. And justice is not a thing that is made, or that can be unmade, or altered by any human authority. It is a natural principle, inhering in the very nature of man and of things. It is that natural principle which determines what is mine and what is thine, what is one man’s right or property and what is another mans right or property. It is, so to speak, the line that Nature has drawn between one man’s right of person and property and another man’s right of person and property.
This natural principle, which we will call justice, and which assigns to each and every human being his or her rights, and separates them from the rights of each and every other human being, is, I repeat, not a thing that [is] made, but is a matter of science, to be learned like mathematics, or chemistry, or geology. And all the laws, so called, that men have ever made, either to create, define, or control the rights of individuals, were intrinsically just as absurd and ridiculous as would be laws to create, define, or control mathematics, or chemistry, or geology.
Substantially all the tyranny and robbery and crime that governments have ever committed – … – have been committed by them under the pretense of making laws. Some man, or body of men, have claimed the right, or usurped the power, of making laws, and compelling other men to obey; thus setting up their own will, and enforcing it, in place of that natural law, or natural principle, which says that no man or body of men can rightfully exercise any arbitrary power whatever over the persons or property of other men.

Some years later Spooner published A Letter to Grover Cleveland, in which he continued to elaborate this theme. He did not believe that natural law needed to be enforced by human legislation. Reality enforces the natural laws of justice. If human laws

command men to do justice, they add nothing to men’s obligation to do it, or to any man’s right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night. If they command or license any man to do injustice, they are criminal on their face. If they command him to do anything which justice does not require him to do, they are simple, naked usurpations and tyrannies. If they forbid any man to do anything which justice would permit him to do, they are criminal invasions of his natural and rightful liberty. In whatever light, therefore, they are viewed, they are utterly destitute of everything like authority or obligation. …
This science of justice, or natural law, is the only science that tells us what are, and what are not, each man’s natural, inherent, inalienable, individual rights, as against any and all other men. And to say that any, or all other men may rightfully compel him to obey any or all such other laws as they may see fit to make, is to say that he has no right of his own , but is their subject, their property, and their slave. [A Letter to Grover Clevelan (1886), pp. 3-4]

In another essay of 1882, On Natural Law; or the Science of Justice, Spooner subtitled his pamphlet “A Treatise on Natural Law, Natural Justice, Natural Rights, Natural Liberty, and Natural Society; Showing That All Legislation Whatsoever Is An Absurdity, A Usurpation, and a Crime.” On page 19 of your book, you point out that “the Founding Fathers believed that rights are God-given and, as such, they are universal and absolute – they are the rights of all people in all places at all times, regardless of nationality or religion. And since everyone is equal, no person has the moral authority to rule over or take away the rights of someone else.” I assume that you concur with their belief that all people are equal in their unalienable rights to “life, liberty, and property.” If this is true, how can you claim the right to establish your version of a good society “where individual dissenters are to be suppressed by means of physical force”? How can “legislating morality” be “wise, legal, or possible” if it necessarily violates the natural law standard of not invading against others till they have aggressed against you?

In conclusion, Dr. Geisler and Mr. Turek: I hope that both of you co-authors take the time to read this letter and the accompanying enclosures. I hope that at least one of you will respond. In any case, I plan to publish this “Open Letter” and any response(s) received from you in The Voluntaryist.

Thank you for writing Legislating Morality and presenting a challenging opportunity for a voluntaryist response.

cc: Mr. Frank Turek
400 Timber Lane
Mathew, NC 28105

Dr. Norman Geisler
Veritas Graduate School
Southern Evangelic Seminary
4298 McKee Road
Charlotte, NC 28270

June 14, 2001

Dear Mr. Watner:

Thank you for your critique of our book Legislating Morality. In the interest of time, I will address briefly each of the four main points of your Open Letter. Please forgive my brevity and bluntness.

First, we are not suggesting that most legislation is designed to produce virtue in our citizens. Instead, most laws are designed to restrain evil rather than compel good (we list a few exceptions to this on page 34). Nevertheless, the law is a great teacher that can change attitudes and actions over the long term (pages 35-38). Your suggestion that everyone voluntarily do good and fulfill their responsibilities takes a very naive view of human nature. As James Madison said, “If men were angels, no government would be necessary.” Men are not angels and therefore good laws are often needed to inform their consciences and constrain their behavior so they don’t destroy the lives, liberty or property of others.

Second, your insinuation that “we advocate placing people in jail [for private drinking]” cannot be found in our text and is false. We don’t advocate any such law. We simply point out that any position on the law (including yours, which is that it would be immoral to legislate morality) is itself a moral position. It is therefore self-refuting. In other words, the voluntaryist wants to legislate morality just as much as the Puritan. You just want different moral standards legislated.

Third, I agree there are bad men in government who can abuse their power. And I agree there are bad laws. Yet, if there are bad men in government, there also bad men in society, which demonstrates the need for good laws and good law enforcement. The fact that there is bad government is not an argument for no government but an argument for better government. I think you voluntaryist approach, while well-intended, would result in anarchy due to the depravity of mankind. Our founding father recognized this and built checks and balances into our system. While our government is far from perfect, it should be improved, not discarded.

Fourth, I wish everyone followed reason but they don’t. We are not just intellectual creatures, but also emotional and volitional. Since men like darkness rather than light and have a tendency to suppress the truth rather than follow it, they cannot be counted on always to follow the Moral Law. Laws and law enforcement are therefore necessary. Moreover, the analogy you make equating mathematics to the Moral Law is invalid. If one doesn’t obey the laws of mathematics, he gets his sums wrong. But if one doesn’t obey the Moral Law, he can kill someone. We don’t need laws punishing people for getting their sums wrong, but we do need laws punishing people for harming others. After all, the laws of math are self-enforcing. The laws of morality are not.

Finally, good laws do not unduly restrict liberty. (I agree that morality can be overlegislated; see pages 211-212) as many laws in the United States do. Good laws simply restrict evil in order to prevent evil. We should not have to wait until “they have aggressed against you” as you suggest. Laws are thankfully preventative as well as punitive.

Please give me a call if you would like to discuss this further. I welcome the dialog but am a bit short on time to write lengthy letters.

Thanks for your interest!

s/Frank Turek

Box 275
Gramling, SC 29348

June 25, 2001

Mr. Frank Turek
400 Timber Lane
Matthews, NC 28105

Dear Mr. Turek:

Thank you very much for your June 14th response to my “Open Letter” about your book Legislating Morality. However it appears that I either totally misinterpreted your book, or that you did not understand the four main points in my letter.

In Point I (of my letter) I was trying to show that the idea of legislating morality is inherently contradictory because virtuous action cannot be produced at the point of a gun. Getting people to act morally can be accomplished in two ways. First, you can teach people to do the right thing because it “is” the right thing. Or, you can threaten people with punishments if they do not do the right thing. [You use the word “punish” in the first line of the first paragraph of page 32 of your book.] If people behave morally because they fear being caught by a policeman, then – when they realize there are not enough policeman to watch everybody – they will revert to immoral behavior. People whose behavior is regulated by their internal conscience do not need policeman to watch them.

I expect your response to this line of reasoning would be that legislation sets the moral tone for a society by defining what types of behavior are acceptable and not acceptable (i.e., punishable). But this doesn’t really address my main point, which is that the motivation for acting morally must be considered before you can decide if a person is really virtuous. In other words, the man who doesn’t get drunk because he fears punishment is acting differently than the man who doesn’t get drunk because his conscience tells him it is unvirtuous to temporarily lose control over his mind and body. (Externally, they may both appear to behave similarly.) The man who is motivated by fear of punishment is not acting virtuously because true virtue consists not simply in doing right, but in freely choosing to do right without the threat of punishment. Thus the concept of “legislating morality” is contradictory because you cannot really legislate “true” morality. Legislation only works by threatening people with violence if their behavior does not meet the legislative standard. In the long run, I do not believe you can build a free and prosperous society by producing people who are governed by external threats.

In response to Point II (of my letter) you responded that I insinuate that you advocate placing people in jail for their misbehavior [for private drinking. It is not clear to me if you were specifically objecting to that conclusion (as regards private drinking only), or if you were objecting in general to the fact that I accused you of placing people in jail if they did not obey other rules of behavior.] But in either case, if you don’t advocate “punishing” people with physcial sanctions, then what do you mean by “legislating”? The act of legislating is the act of passing laws by a governmental body. Such laws may possibly be of an advisory nature, meaning people may choose to ignore them without legal consequence. Am I wrong in concluding that the types of laws you advocate in Legislating Morality are laws which “punish” people who violate them? National prohibition (from 1920 to 1933) was backed by punishment of people who manufactured, transported, and sold intoxicating liquor. They were to be placed in jail, have their property confiscated, or both. If people don’t behave in ways that you (or the legislators you choose) deem appropriate, then what do you advocate be done to them? Either you have to leave them alone or you must use violence on them in order to get them to cease and desist.

Finally, I do not at all understand the flow of logic in the third paragraph of your letter where you say that my position is self-refuting. As a voluntaryist I do not endorse any sort of coercive government, and certainly do not advocate any sort of legislation. However, I do embrace the commands of the natural law that there are moral absolutes, such as “do not murder.” But these types of moral absolutes do not need to be legislated by governments. This is because they are either right or wrong by nature and government legislation can add nothing to their rightness. Yes, I have a moral position – but I do not believe that it must be imposed on others by violence. I do not believe in the appropriateness of any sort of legislation. I believe in voluntary social institutions setting the moral tone for society. Where government sets the moral standards for society, such standards do not induce true morality or virtuousness (because they are backed by the threat of the gun). Furthermore, there is the very real danger (as we are now experiencing) that corrupt men will take over the reins of government and cause the disruption of the rest of society.

I believe the issues you address in Legislating Morality are important ones, and look forward to seeing our correspondence published in The Voluntaryist.

s/Carl Watner
Day tel 864 472 2876

The experience of long ages has taught us two important axioms. The first is that you cannot make men better by legislation; and the second is that power over other men is always abused. It is very stupid, in spite of this age-long experience, to go on hoping the contrary; and criminal, it seems, to go on acting as if these axioms had been disproved. The more rational proceeding would be to give over trying to legislate men into heaven, and to prevent the abuse of power by withholding power.
– Hanford Henderson,
The Charioteer
(1933), p. 285.

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