Shifting Morals and Shifting Laws

Blogger Classically Liberal shows how codifying the morality of the day (“societal justice”) can give you laws that abuse a slowly changing demographic of victims. With support of Christians, England at one time had criminalized homosexuality; but now that most brits openly accept it, England’s remaining Christians and their speech are becoming targets for abuse by today’s laws.

The desire to use the law to impose one’s morality has to be a human thing because it seems to have been pretty universal. Some have well-meaning reasoned intentions, but many want prohibitions simply because it’s wrong to let gays marry, use “drugs”, watch dirty movies, gamble, use alcohol, be gay, allow women to vote, marry out of race, education your slave… How morality shifts.

What if instead you had law based on the unchanging principle of positive personal liberty? Would society collapse in an orgy of sex, drugs, and Adult Swim marathons? We kinda tried this. The U.S. Constitution was radical in that it mostly limited the behavior of the government rather than of the individual, not that the Good Old Days of the U.S. were the golden age of personal liberty.

As the author of Last Call noted on Fresh Air, Prohibition was the first Amendment really limiting personal conduct, and we later got rid of it. I don’t drink, but I’ll have a sugary rum drink in celebration when DOMA falls.

3 thoughts on “Shifting Morals and Shifting Laws

  1. Aaron says:

    This gets at the heart of some of problems, no doubt, but your post fails to acknowledge that many (most?) laws are essentially legislating morality. Laws against murder exist because a preponderance of people believe that murder is immoral. Of course, murder involves one person impinging absolutely upon another’s freedom, so it seems to make good sense as a law under your “personal liberty” standard. But consider antitrust, or anti-prostitution laws. Those are laws that (in very different ways) attempt to protect the weak from the economic incentives of the powerful to abuse their power. Or let’s throw abortion into the mix; wherever you stand on this issue, clearly it’s fraught with various “personal liberty” issues, both for the mother and for the unborn child.

    Our laws reflect a moral judgement of how we want our society to run, and what freedoms are best worth protecting. You reference an “unchanging principle of positive personal liberty” that I’m not sure exists.

  2. says:

    You reference an “unchanging principle of positive personal liberty” that I’m not sure exists.

    I think you’re right. There’s no singular set of principles, including “personal liberty”, on which you’d want to base a complete system of laws; you always want reasoned scrutiny and a consideration of evidence to predict outcomes. Just like religions, libertarianism certainly has its own dogma that—if slavishly codified in law—could yield some awful outcomes, but I believe there are definitely areas of human behavior where the personal freedom of adults should be (and currently are not) of the top principles considered when crafting laws.

    Legal prostitution is a good example of the unworkability of some libertarian solutions. It would be unfair to call the existing legal regulatory frameworks “libertarian” just because they’re legal; they look to be established by and empowering to only brothel owners. I would think the minimally abusive model would be an escort service where the worker chooses the hours and clients and gets a free, government-provided chaperon (someone not incentivized to coerce the worker into more acts). Of course a safer system, for both the client and worker, will increase prevalence, and there’s the connection to drug policy: an “ideal” regulatory system which would produce a socially acceptable level of abuse—and use—is unlikely to appear or to be politically possible, for numerous reasons.

  3. Aaron says:

    but I believe there are definitely areas of human behavior where the personal freedom of adults should be (and currently are not) of the top principles considered when crafting laws

    I completely and strongly agree with this quote and your overall thesis. I was just picking nits.

    I lament that the prevailing attitude of the day seems to be oriented towards government “fixing” any situation which could possibly have negative outcomes without regard for the personal liberties sacrificed for such government involvement.

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