Much has been said over the last two decades about a culture war in the US, and the world generally, between the Left and the Right, urban and non-urban, of which the Blue and Red divide is said to be symptomatic. After 9/11/2001 we declared something of a cease fire as everyone realized who the real enemy was. But the engine of war is back up to full steam, having subsumed the Global War on Terror as another front. The prize in the culture war is the right to define morality, and to write that morality into law.
Ethics, morality, and the law share guiding human behavior as their common subject matter. It is possible for behavior to be unethical but moral and legal; unethical and immoral, but legal; and so on. But in most cases the intersection of the three is characterized by their violation. Some people, even otherwise clear-headed philosophers, seem to become thoroughly befuddled when asked to compare and contrast them. It's all pretty simple:
- Ethics are the rules we adopt for ourselves
- Morals are the rules we believe apply to everyone
- Laws are the rules we demand that everyone obey
Morality is what we believe to be universal, or if we have taken time to ponder the matter, to be generally accepted by our culture as defining right and wrong. Morality is, paradoxically, subjective. We each believe that everyone should hold the same morality as we do, but clearly they do not. People have different views of what is moral and what is not, but each is convinced of the accuracy of his own moral compass, and the inaccuracy of those which differ. And lest the counterpoint of tolerance be raised, note how morally wrong intolerance appears to the pathologically tolerant.
Some hint that morality is universal or believe it inseparable from religion. Some argue as they have for centuries that an innate human morality exists which, in its instinctual purity, whether mandated by a Creator or inbred by racial memory, contains the universal Truth. I simply say here that whatever the source, we all believe there are some things all the people around us ought to believe, even if the manifest reality is that we do not all believe all of them, and even if those beliefs are contradicted by our wider culture.
As a person grows in sophistication respecting moral choices, he begins to see that others have a strong sense of morality that bears only partial resemblance to his own.
Lawrence Kohlberg called the various kinds of moral sophistication "stages", and said that life is a journey of transitions from one kind to the next, ending with the final stage. A better understanding of moral sophistication is as a spectrum, with bands of sophistication corresponding to Kohlberg's stages, but without rigid boundaries between them. Further, Kohlberg rejected the obvious notion of recidivism, that a person can vacillate between levels of sophistication, in tacit agreement with the maxim "once you see truth, you can't un-see it". Morality does not have trap doors, however: it is possible to toy with or embrace a view of the world for a time, then reject it as unsound.
Ethics, on the other hand, are rules we intentionally adopt for ourselves. By adopting them, we know a priori that they are not universal. They often overlap with morals, but the distinction of personal adoption is important. For some, their ethics replace their morality entirely, as in the case of those who believe they have a sufficiently developed set of rules to ignore societal norms.
"You can't legislate morality" is often misused as a reason not to try; in fact, that only makes sense as a mere statement that the law never created a moral person. Here is Keith Burgess-Jackson's take on it. But the law generally reflects, or at least tracks, the morality held by those in power; in democratic forms of government, that should mean it approaches something like the popular viewpoint.
For many people, morality consists of personal behavior, especially in chastity, honesty, familial loyalty, avoiding theft or murder. Others see morality in terms of man's obligation to man. Regardless of their particular definition, they always think it would be better if everyone who differs held theirs.
Under democratic governments, the law provides a baseline for morality, a set of extremes on which all, or a strong enough majority, agree. Examples include laws against murder, theft, rape, and incest. Totalitarian regimes attempt, by definition, to legislate the entire range of human activity. The typically strict moral climate of a totalitarian government sets the extremes too tightly, causing the controlled population to see rebellion not as immoral, but as morally obligatory. The American Founders found themselves in just such a circumstance -- but that is a subject for another day.
Does the law generally have a normative impact on morality? That is, do we internalize the law? If it did, it would nudge a person closer to being moral, even if, as asserted, morality cannot be legislated. I believe the law does affect our opinion of what others see as moral, which in turn affects what we see as morality. I'm not sure how strong the impact is, but it's definitely there. At least anecdotally, we've all heard people equate an action's rightness with its legality: a politician who "has never been indicted" is appealing to this sense, as is the teenager who claims that his actions are correct because he is breaking no law.
An example of legislated morality is that of sexual harassment in the workplace. While for many years it was legal, but widely considered immoral, for a boss to use his or her position to gain sexual favors from a subordinate, the topic entered the political spotlight with the hearings of the Senate confirmation of Clarence Thomas for the Supreme Court of the US. Liberals were outraged at the charges, assuming them to be true, while Conservatives were dismayed at the low morals described in the hearings, and assumed them to be false, or exaggerated. In any case, laws across the country against sexual harassment were strengthened, because there was a consensus on the matter. What may be the definitive quote on the subject comes from Kate and Leopold, the story of a nineteenth century aristocrat brought by time travel to the present day:
Leopold: Some feel that to court a woman in one's employ is nothing more than a serpentine effort to transform a lady into a whore.Since the time of the Thomas hearings, whether merely because of renewed emphasis or because of the laws passed against it, the culture has accepted sexual harassment as immoral.
Many groups with a variety of political ideologies have made it their expressed purpose to advocate laws, so that a certain moral position will be legally advocated. These groups appear to believe that law shapes public morality.
In a similar vein, there is the phenomenon of political correctness, in which those in the majority are allowed only to express views which do not offend the minority. The enforcers of this principle see it as a moral issue: you shall not offend. With laws against "hate crime", the enforcers of political correctness make a direct attempt to legislate morality. They want their beliefs about right and wrong put into law.
Others don't care about legislating morality per se, but feel a moral obligation to have the government perform charity. They argue about social contracts and just societies, but in the end they want to force one person to give to another, whether such charity is charitable or not.
Who will win the culture war? Whoever is most successful in legislating morality.
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