Many people like to distinguish law from morality, and while the two are certainly conceptually distinct, I will argue below that in a democracy, morality is at least a partial basis for all legislation.
"It is hard to understand how someone could defend the substance of the position" that "legal regulation can be determined without moral judgment," writes Kent Greenawalt (712-3); most laws are necessarily moralistic, at least in part. Even traffic laws could be described in moral terms, if we make reference to the danger one might pose to others, and the responsibility a driver has to secure the safety of his fellow motorists. The requirement that we drive on the correct side of the road could be considered a moral requirement if we think in terms of what would happen if this law were violated.
Laws can be justified in terms that are not explicitly moralistic by means of what the late philosopher Joel Feinberg calls the "harm principle" (Greenawalt 712; Stewart 49-50), a term perhaps first coined by John Stuart Mill. Another philosopher, Hamish Stewart summarizes the principle this way:
It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values (50; emphasis added)
For Feinberg's purposes, "harm," in all of its senses, is something that ultimately results from wrongful acts (Greenawalt 712; Stewart 49-58).
So, although the "harm principle" seems to have been concocted as an ad hoc legalistic 'surrogate morality' (by not appealing to morality directly, but instead to an interest in the avoidance of "harm") it nonetheless eventually lands itself squarely back in the domain of morality itself.
What could "wrong" possibly mean, after all, if not something nearly synonymous with immoral? Nothing.
The appeal to moral intuitions in the world's legislative processes is sometimes veiled, though one would not need to search for long to find instances of explicitly moralistic language; such language is used unabashedly when an alleged crime is particularly—and here comes an example—"heinous."
Obviously, "wrong's" modern meaning is ambiguous enough that not all senses of it imply immorality. But many of the antonyms for 'wrong-inaccurate' are the same for 'wrong-immoral,' and this is not an accidental coincidence. One Latin word for 'left' (the opposite of the directional 'right'), is sinister. The words "right" (all senses), "correct," "straight," and "rectify," all come from the same ancient Indo-European root, "reg–," which means, moving in an uwavering ('straight') line.
Interestingly, other English derivatives of "reg–" with moralistic overtones include "regular," "regulate," "rule," "arrogate," "abrogate," "reckless," and "prerogative," among many, many others (Watkins 70). Apparently, the concept of righteousness-as-straightness is integral to at least Indo-European language and culture, and perhaps is a universal concept among all human cultures.
This etymological evidence doesn't tell us much about what right's modern sense is. But, as John Stuart Mill writes, "Etymology is slight evidence of what the idea now signified is, but the very best evidence of how it sprang up" (47).
Even the harm principle or other attempts to avoid morality in law will fail, because ultimately, the very project of enacting legislation is a moralistic endeavor. The very idea that there is a problem with harming others is moralistic.
And there's nothing wrong with that.
-Greenawalt, Kent. "Legal Enforcement of Morality." The Journal of Criminal Law and Criminology
-Mill, John Stuart. Utilitarianism
. Second Edition. Ed. George Sher. Indianapolis
: Hackett, 2001.
-Stewart, Hamish. "Harms, Wrongs, and Set-Backs in Feinberg's Moral Limits of the Criminal Law." Buffalo Criminal Law Review
): 47-67. Buffalo Criminal Law Center
. 28 Jan 2002
. 23 May 2005
-Watkins, Calvert. The American Heritage Dictionary of Indo-European Roots
. 2nd Ed. Boston
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