March 9, 2016Posted by on
There are moral ends which it is perfectly proper to defend or promote by the use of legislative power, and some of them are of a kind which concern extremely intimate activities. T.E. Utley – What Laws May Cure
It is not true that the happiness of the people and the quality of a society’s life is wholly unaffected by such factors as its marriage customs or the extent to which its members are addicted to drug taking or homosexual practices. It may be that marriage is a bad institution, that drug taking and homosexuality are either morally neutral or positively virtuous activities, but it cannot be said that these things belong to a department of life which produces no social effects and which is consequently and obviously outside the legitimate sphere of State activity.
Yet, it is clear that there are particular difficulties in legislating about personal morals. To begin with, who is to decide what morals should be enforced ? This is indeed only one part of the large and perennial question in political thought. Who has a right to decide anything? No doubt, the constitutional answer is that in a democracy the decision rests with the majority; yet, particularly where deep and highly personal convictions are concerned, the democracy must do its best to respect minorities. An unusually large consensus of opinion is needed to make legislation on such matters tolerable or even practical.
Suppose, however, that a firm consensus of opinion on the extreme importance of discouraging some private activity deemed to be immoral has been discovered. Suppose that it is widely felt that the continuing practice of this activity damages the whole quality of social life and causes ever-growing human misery. Other conditions have still to be satisfied before a wise legislator can decide to bring the brute force of law to bear on those who persist in defying social convention.
It has to be decided whether any law made can be enforced, or enforced with enough impartiality and constancy to stop its becoming an intolerable affront to the principle of legal equality. Failing this, the presence of an unenforceable law on the statute book should at least have a favourable effect on human behaviour — that it will perform the functions of a sermon rather than a threat. If the law is to be made, it must also be established that the cost of enforcing it in terms of human happiness and virtue is not so great as to offset the merits of enforcing it.
These calculations are never easy and can seldom be made with complete certainty. An even harder judgement is involved in distinguishing between activities which can be safely regarded as wholly deplorable and those which, however much they may offend current sentiment and however bad their contemporary effects may be, may nevertheless contain potentialities for good.