Legislating Morality?

Reviewed by Joseph R. Reisert

That any attempt by the state to legislate morals must be illegitimate has become a platitude of contemporary political thought, and Robert George's new book, Making Men Moral, challenges it directly. Situating himself within the natural law camp, George deftly brings that tradition into a dialogue with contemporary liberalism. He proceeds dialectically, first engaging traditional supporters of morals laws and then some of their liberal opponents, including Ronald Dworkin, John Rawls, Joseph Raz, and others. George concludes by presenting "the basic outlines" of his own theory of civil liberties. The results will surely interest adherents of natural law and liberals alike.

George opens with the case for morals laws. Right behavior, he notes, requires more than knowing what one ought to do and why; one must also resist temptation and carry out the required action. Experience teaches that virtuous action is difficult because pleasure and various other goods tempt us to do wrong. Morals laws attach legal penalties to immoral acts in order to make performing them less attractive than refraining from them. They aim to encourage people to fulfill the outward demands of morality, as George rightly stresses:

Laws cannot make men moral. Only men can do that; and they can do it only by freely choosing to do the morally right thing for the right reason. Laws can command outward conformity to moral rules, but cannot compel the internal acts of reason and will which make an act of external conformity to the requirements of morality a moral act.

The objection arises, Why should the state legislate morality? Should we not leave the promotion of good character to parents? George answers that no parent alone can shield children from exposure to violence, drug use, pornography, and other genuinely social ills. Children learn from the society around them. The widespread availability of drugs and pornography undermines parents' efforts to protect their children from vice. Cultural understandings, for example about sexuality and marriage, structure the kinds of people we become and the relationships we form. George uses an apt environmental metaphor to support his point: just as the state restricts apparently private activity in order to protect its natural ecology, so also may it legitimately enact laws to protect the "moral ecology."

Since laws aim at helping people to lead good and worthwhile lives, they must not, according to George, prohibit any morally indifferent or valuable activity. Laws, therefore, can always be challenged on the basis of reasons. For example, legislators who upon reflection conclude that pornography is morally indifferent may not legitimately elect to outlaw it. Significantly, the converse does not hold: the state need not prohibit every vice, though it may do so. Legislators may elect for prudential reasons to tolerate some vices.

George enumerates many such reasons, but the most important are two. First, the legislator might want to limit governmental power in order to reduce the possibility of its abuse. Second, laws requiring external conformity to moral rules may promote an atmosphere of hypocritical moralism, hindering the moral education they were designed to assist. In short, George holds that morals laws do not significantly differ from other criminal laws. Moral wrongs, violent or not, may legitimately be criminalized; legislative prudence must determine when they should be.

Why, then, do liberals insist that the state may not legitimately outlaw immoral behavior? Simply put, they aim to protect individual freedoms. They prohibit morals laws and guarantee rights in order to allow each individual to decide for himself (as far as possible) what is virtue and what is vice and then to act accordingly. Although George considers each thinker separately, his general response to the liberals can be easily outlined.

George treats most severely the "anti-perfectionist" liberals-including Dworkin, Rawls, and David Richards-who contend that the state should, so far as possible, establish laws without reference to controversial views about the best human life. They prescind from undertaking judgments about human goods in the hope of attracting universal support for the regimes they propose. Individual freedoms, they hold, can be restricted only for reasons commanding near-universal acceptance. Thus they acknowledge the legitimacy of ordinary criminal laws protecting persons and property but deny the legitimacy of morals laws. George replies that the anti-perfectionists' ideal is only a chimera: no suitably uncontroversial premises in fact exist. In particular, the anti- perfectionists' preference for liberty is itself only a controversial preference for a particular kind of freedom. Protecting the rights of the consumers of pornography requires restricting the liberty of those who want to rear their children in a moral environment free from its degrading influence, and the choice between these is clearly a matter of controversy.

Though he subjects his liberal opponents to a scathing critique, George aims to establish civil liberties on a more secure foundation than the anti-perfectionists propose. He advances a "perfectionist" view of civil liberties-so called because it posits that rights exist in order to guarantee the freedom to pursue genuinely worthwhile activities. He writes:

Where liberty or privacy serves basic human goods as important means and conditions, one has reasons (which are often conclusive) to respect the liberty or privacy of others (and, thus, to recognize a right to the liberty or privacy in question) even when one has competing motives not to; and governments have reasons not only to respect, but to protect such rights.

This account of rights has the powerful advantage that every legal right can be justified by reference to some good or range of goods it protects. Friends of civil liberties may object that jurists and legislators will be insensitive to the wide (and often disconcerting) range of worthwhile speech. Two answers can be offered. First, since restrictions must be justified, one can always defend one's claim to speak by appealing to the value of one's expression. Second, George's theory indicates what speech must be permitted at a minimum, not what must be proscribed; legislators and to some extent the courts also must take into account prudential considerations that frequently suggest more, not less, tolerance.

George presents a similar, but somewhat less successful, account of religious liberty. He justifies freedom of religion not on skeptical grounds but with reference to the good of religion in human life. He contends that everyone, including atheists and agnostics, acknowledges the importance of "considering whether there is some ultimate, more- than-human source of meaning and value" and then of living one's life according to one's conclusion. If there is a God, we should surely live in harmony, even, in a manner of speaking, in friendship, with God. Just as human friendship depends on freedom-we choose our friends and willingly spend time with them-so, too, does a genuine relationship with God require willing involvement. Thus George concludes that "government may never legitimately coerce religious belief; nor may it require religious observance or practice; nor may it forbid them for religious reasons," although it may legitimately "encourage and support religious reflection, faith, and practice."

That belief may not be compelled follows from its nature: it is an "interior act," performed freely or not at all. Likewise, religious observances may not be coerced because they, too, must be willed freely to be genuinely religious observances. In this way, religious and moral acts are alike: no one can be religious or moral without choosing to be so. As suggested above, George defends morals laws by noting that while coercion cannot make people moral, it may help them to become so by preventing them "from habituating themselves to corrupting vices." Although George rejects this contention, an argument parallel to his can justify religious coercion; indeed, Saint Augustine presents such an argument in a letter to the Donatist bishop of Cartennae, Vincentius. Augustine acknowledges that coercion cannot make anyone "good in spite of his own will," but it can bring someone "through fear of suffering" to abandon religious error and to seek truth. Initially an opponent of religious coercion, Augustine came to permit it both for theological reasons and on the basis of its empirical success: people who at one time had rejected the Church eventually gave it their willing allegiance-after the imposition of coercion led them to reconsider their views.

George's arguments in principle against coerced religious practice succeed only if he can establish the distinctiveness of religion as an aspect of human fulfillment. But as George depicts it, religion seems to be a mixture of practical reasoning about how to live and friendship or communion with one's coreligionists and one's God. If so, then there may be no distinctive, perfectionist argument to justify religious freedom in principle. However, the moral rights to freedom of speech and assembly supply ample grounds for a legal right to freedom of religion. In any event, overwhelming and conclusive reasons of prudence argue for the legal recognition of religious freedom. Indeed, much of George's own case for freedom of religion rests on prudential considerations: "Any attempt by government to coerce religious faith and practice, even true religious faith and practice, will be futile, at best, and is likely to impair people's participation in the good of religion."

George's perfectionist theory of civil liberties merits scholarly attention, especially from liberals who too easily dismiss natural law thinking as an outdated approach to politics and ethics. Making Men Moral shows unequivocally that natural law thinking can support and improve our liberal political regime. It hints at intriguing possibilities for concrete improvements to American laws and institutions, but as a philosophical book, it can only bring them up in passing. George acknowledges an obligation to his readers to supply a fuller treatment of specific applications in future works. We will await those eagerly.