July 08, 2004
Those libertarian Church Fathers

Clifton Healy has this to say to those who oppose legislating morality:

The law is not mere convention--though clearly there are conventional aspects to the law. The law is much more powerful than that, as Plato, Aristotle and many important thinkers have recognized throughout history. No, in point of fact, the law is a paedegogus, a tutor, instructing us in morality, inculcating in us notions of right and wrong, virtue and vice.

So the current understanding in the U. S. of the separation of Church and State is both philosophically unsound, and, ultimately, unworkable. And as the culture wars continue to flame, this is becoming more and more obvious.

As it happened, not long before I read this post I saw this nugget at Christus Victor:
The idea that it isn't necessarily sinful to legalize grave sin has a long and impressive pedigree in Catholic thought. Augustine, for example, thought that prostitution should be legal, despite being a grave evil, because trying to suppress it would only make things worse. Aquinas agreed.

My readers who know more about Augustine and Aquinas than I do can correct me if I'm wrong, but I doubt they disagreed with Clifton's basic thesis. I suspect it's more that the cost of enforcing a law is part of its moral calculus.

Though this is rarely brought up, every law harms somebody. It costs the taxpayers money, it endangers police, and of course it harms those who break the law or who are falsely convicted of breaking it. We just tend not to notice this until the cost of illegality becomes extremely high, such as was the case with prostitution in the Middle Ages or with drugs and abortion in the modern era. And when you criminalize something that a large minority of the population thinks is OK, it's less a normal legislative act than a declaration of civil war using police as soldiers. Think of Prohibition, for instance.

Clearly Josiah, and probably Clifton, believe abortion is a grave enough evil that they are willing to pay a very high price to stop it. But while I agree that a lot of pro-choice arguments are lame, I think any plan to criminalize it has to deal with the possibility that it would be Prohibition Redux. The law is a teacher, but teachers don't normally pull a gun on you if you don't turn in your homework.

Posted by Camassia at July 08, 2004 03:50 PM | TrackBack

"And when you criminalize something that a large minority of the population thinks is OK, it's less a normal legislative act than a declaration of civil war using police as soldiers"

Amen, sister Camassia, amen.

Posted by: Hugo on July 8, 2004 06:31 PM

"Think of Prohibition, for instance."

Or, indeed, think of the Civil War.

Posted by: Tom T. on July 9, 2004 05:13 AM

Mark has an interesting post on this subject too.

Posted by: TSO on July 9, 2004 07:32 AM

Another problem with having laws purely to make a moral statement, without regard to how they'll be enforced, is that you may sometimes wind up with laws which no one has any intention of trying to enforce. And such laws are an invitation to selectively enforce the law on the few people you want to get for other reasons (while giving most people a pass). Think, for example, of an almost always unenforced anti-adultery law being used against someone like Martin Luther King. Not something that would apply to abortion (that people would try to enforce), but there are some other laws on the books that can be used in this kind of way.

Posted by: Lynn Gazis-Sax on July 9, 2004 07:43 AM

"Though this is rarely brought up, every law harms somebody."

On the contrary, every lawbreaker harms somebody, both directly and indirectly. It's the nature of sin.

Posted by: Clifton D. Healy on July 9, 2004 11:28 AM

Clifton, those two facts are not in opposition. If a law is successful, it's not because it harms no one but because that harm is outweighed by the harm it prevents. But that balance doesn't always work out in the law's favor.

Posted by: Camassia on July 9, 2004 12:04 PM
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