Leave morality out of lawmaking and you’re left with what?

At a recent debate on abortion in NUIG, a professor of Law in the university wrapped up the debate with the concession that, even if the humanity of the unborn could be accepted, as proposed by the pro-life speakers, as far as she was concerned, the autonomous decision (free choice) of the mother trumped any right to life of her child. I was left dumbfounded: a “free decision” can legitimately terminate a life?

Few will deny that human freedom exists, but also that it needs to be regulated. “My freedom ends where another’s begins” is a moral axiom learnt by children from the earliest age.

Yet, we in the West have seen in recent years how, in the name of absolute freedom (“autonomy of self-determination” and the “right to privacy”), morality has been inverted and what’s always been morally evil, dehumanising and despicable, is now accepted, normalised, celebrated and even encouraged. Are we heading for the social catastrophe foreseen by the nineteenth century French political philosopher Frederic Bastiat?:

“When misguided public opinion honours what is despicable and despises what is honourable, punishes virtue and rewards vice, encourages what is harmful and discourages what is beneficial, applauds falsehood and smothers truth under indifference or insult, a nation turns its back on progress and can be restored only by the terrible lessons of catastrophe.”

The last five or six decades have seen a drive towards a rationalisation of misbehaviour which has led to the legalisation of several immoral and anti-family practices in areas of social and reproductive behaviour. Here the dynamic runs: after I have convinced myself that something wrong is right, I need you to accept that the wrong that I do is OK. There is a growing clamour to a “right” to do wrong, or more accurately, that the wrong I do (sodomy, abortion, contraception, assisted suicide, etc.) is my right. We’re moving from tolerating immoral behaviour to accepting it as normal and good, to celebrating it and institutionalising it legally and officially, and even to enforcing its acceptance through prosecution.

Enacted laws shape moral behaviour: people assume a law has been enacted to prevent evil actions and foster the common good. If a human action is protected by law it is assumed to be a good law; law is meant to derive from morality. For example, slavery was once legal in many jurisdictions but nowadays, with our clearer understanding of the dignity of man, we have come to see it as a social and human evil and therefore made it illegal in the West.

The problem with our civilization is that the moral convictions underlying its public order (legality) have been undermined to the point of near collapse. The reason is that morality has been disassociated from reality. Things and actions no longer recognised as having a clear purpose, given to them by nature (i.e. their Maker), and therefore they are bereft of meaning. Juridical positivism reigns supreme in Western liberal democracies; laws are judged to derive their validity from the power of the legislators, without recourse to any moral code (other than their own subjective reading of reality and preferences): the elected representatives in a democratic political system come up with laws, which when approved by due processes, are indisputable and owe their validity to the process from which they emanate, regardless of the morality of the enacted law. As a consequence, not all enacted laws are actually moral.

So if new laws that legalise and justify behaviours that were seen as immoral for millennia are not based on a moral code shaped by nature, where do they come from? On what basis do Supreme Court judges in many Western jurisdictions justify their validity and propose their enforcement? According to several authors, these laws source their justification from two related overriding principles. The first is the autonomy of self or the right to self-determination: the ability to make my own choices and ultimately create my own laws (hence slogans like “my body, my choice”, “bodily autonomy” and “What do we want? The right to choose”). The second is the right to privacy; the freedom of (autonomous) consenting adults from interference by the State or other institutions.

According to US Supreme Court Justice A. Kennedy, “at the heart of liberty is the unassailable private conduct between consenting adults made under the inviolable autonomy of self: the right to define one’s own concept of existence, of meaning, and of the mystery of human life.”

So what’s wrong with this? “Autonomy” (the freedom to choose) in a vacuum, without parameters guiding us to what is best for us (“the good” for man), is meaning-less and point-less. If actions have no purpose or meaning from which their goodness derives, morality is empty and has to be based on arbitrary human decisions. In practice, it is power which arbitrates (whether legislative or judicial). Autonomous actions without a moral framework are meaningless.

The implications coming from this understanding of morality and law are obvious: if  we are not able to legislate  against acts that are morally wrong, so as to encourage behaviour towards the good of the individual and the common good, because we cannot agree as a society what is morally wrong, then on what basis do we agree what should be legalised and what should be illegal? who decides what is legal or ilegal, and why?

We’re left with the “dictatorship of relativism” that Pope Benedict XVI spoke about. There are no objective, universal moral norms on which to base a morally sound legal framework.  Yet, it is ironic that the very courts that deny the existence of objective, universal moral norms have advanced the “right to privacy” as a fundamental, inviolable right. Furthermore, if their justification rests on the private actions of autonomous, consenting adults, where do you draw the line: why would you not legalise the likes of polygamy, bestiality and incest?

Ultimately, Western societies’ adoption of a legal framework bereft of any moral bedrock is based on a misunderstanding of freedom and what it is to be human. So much talk of “rights” has obscured the concept of civic responsibility. As Mary Anne Glendon puts it: “… so much rights talk … in its relentless individualism, fosters a climate that is inhospitable to society’s losers…. In its neglect of civic society, it undermines the principles seedbeds of civic and personal virtue.” We become so concerned with securing our own rights that we exhibit little interest in the well-being of others. In fact, others are seen as potential rivals for the goods to which we believe we have rights. Our passage through this life becomes less one of community and social engagement in the pursuit of a common good for all, especially the most vulnerable, and more one of pursuing our own selfish goals (as ‘rights’) at the expense of others.

At the heart of this reinterpretation of what it is to be human is an absolute ignorance about the teachings of Aristotle (and of his many followers since antiquity), who saw man as a social and political animal, and who explained the good life as the pursuit of virtue. The keystone for democracy and good social living is not Justice Kennedy’s version of freedom: autonomous free choice. It is virtue: the pursuit of a common welfare of man by way of personal strife to do battle against our selfish and base instincts. Often, the more we turn away from what we (at first sight) hold dear for the sake of the good of others, the more society will thrive and people live in happy harmony.

The laws of the land need to support and encourage such pursuits of a common good and communal happiness, by way of facilitating virtuous living and discouraging (punishing) vice. Sadly, “our culture no longer corners us into virtue, but impels us into vice.”

¹ Frederic Bastiat, Economic Harmonies

² cf. Robert R Reilly, Making Gay Okay, Ignatius 2014, p. 207

³ R. Reilly, R. George, J. Smith, R. Hittinger, M.A. Glendon, etc. Cf. also John Paul II in Evangelium Vitae

⁴ Planned Parenthood v. Casey, 505 (1992), Justice Kennedy (quoted in J.E. Smith, The Right to Privacy, xiii)

⁵ Mary Ann Glendon, Rights Talk: The Impoversishment of Political Discourse, 1991

⁶ Robert R Reilly, Making Gay Okay, Ignatius 2014, p. 213