Opinions Expressed in "Rants," while informed by Catholic doctrine, are merely the opinions of the author.
If its Immoral, Should it be Illegal?
To warn you in advance, this Rant is a little on the sophisticated side...
If something is immoral, should it be illegal? This is a HUGE question, that underlies a whole bunch of ethical/moral controveries that are all over the news and politics, debated in court rooms and class rooms. Smoking weed, abortion, stem cell research, gambling, gay marriage, euthenasia, pornography, prostitution; the list goes on and on and on.
In order to demonstrate the argument, lets pick a law, an easy one, say: stealing. Stealing is considered both immoral and illegal. Even the smallest incident of theft carries a legal penalty, from fines to community service, to, in more extreme cases, jail time, etc. Stealing is immoral because it is damaging to the social relationship between persons, the protection of their right to property, etc. When it comes down to the chase, we'll probably find that stealing is illegal BECAUSE it is immoral.
So, what happens when we face an issue like abortion, or gay marriage? Some people regard these practices as immoral, and therefore say that they should be illegal. Some would even go so far as to say that because pornography is immoral, it should be illegal. And we immediately run into the crux of the problem - not everyone considers these issues to be immoral. They are immoral by the standards set by a particular religious system. But our legal system seeks to separate legal consideration from dependence on a religious system - the separation of church and state. Basically, I have no right to impose my religious beliefs on someone else who doesn't hold my religious beliefs - so the argument goes.
So what about a really straightforward example, like murder. Why is it illegal? Is it not because it is considered immoral by the standards of someone's religious belief system. Turns out, murder is illegal because at the time that it was set into law, religion had a HUGE effect on what was legal and what wasn't. In fact for ancient societies, the Babylonians, the Eqyptians, and most notably, the JEWS (upon which our religion is based), the original law codes of those societies WERE their religious laws.
So as for people like John Kerry or Joe Biden, Catholics, who say that personally, they believe that abortion is immoral , but it shouldn't be illegal because they don't have the right to impose their religion on others - sorry, that argument just doesn't hold. And this is clear because both the immoral and the illegal have damaging effects on individuals and on society as a whole - that's what MADE THEM immoral and illegal. The CONSEQUENCE of the choice is ALWAYS the measure by which both morality and legality are to be ultimately gauged. That's why, in ancient times, there was no distinction between moral laws and legal laws.
But there's a distinction today. So this is what it comes down to - if our laws are not determined on the basis of a religious system, then what are they based on? We would be left with a) whoever is in charge decides, because he has the power to enforce his will on everybody else (might MAKES right), or b) majority rule: the society collectively decides what its laws will be,in part influenced by, but ultimately independent of particular religions' determinations of what is moral.
And this is the system we have in North America - it's either a) or b) - not sure which though, as our democratic processes are so easy to compromise through manipulation of the media, bizarre legislative and constituency rules, etc. There have been plenty of politicians who arrogantly presumed to know what's better for their people than the people do - the Canadian liberal government was notoriously guilty of that one. But another example would be Abraham Lincoln vs. the Confederate States of America - the Confederacy democratically agreed that slavery was oki-doki. Ultimately Lincoln had to force them to abandon the practice, with both law and war. Is it okay for a leader to undemocratically force his beliefs on his subjects? Well, only if their right, right? Who decides that their right?
So some things that are immoral by my religious standards are legal, such as pre-marital sex. Should pre-marital sex be illegal? It is for people under a certain age, but not in general. In fact it never has been in general, not in modern times anyway. So again, should it be illegal, because it is immoral?
Maybe it should. I could easily argue that widespread, casual pre-marital sex has had a disasterous effect on the social moral fabric. The purpose of law is to protect that moral fabric, and therefore - it should be illegal.
Then the argument gets more complicated because we need to ask - how do we enforce a law against pre-marital sex? We'd need to catch people in the act. This is the only way. Plus, can you imagine putting people in prison for something like this? Well - I don't know. So, added to our dilemma, as to whether a moral law should be made a legal law is the following principle - that damage that an immorality has on society has to be measured against the ability and cost of enforcing such a law.
This principle could then be pointed at another moral/legal issue - smoking marijuana. It's illegal at the moment, for a whole bunch of stated reasons. However, its extremely difficult to enforce such a law, and given that cigarettes and alcohol, on the whole, do much more damage to our society, are more addictive, etc., than weed - so the argument goes in favor of legalization of marijuana. If society really wants to be consistant in its decision to make weed illegal, shouldn't it also make alcohol illegal? - oh wait, they tried that in the 20's in the U.S., the Prohibition era - didn't work out very well, unless your name was Al Capone.
Here's another monkey wrench into the argument. It can be generally agreed that stealing should be illegal. But most moral theologians will agree that a starving man is NOT acting immorally if he breaks the law and steals a loaf of bread. The purpose of law is to protect and safeguard the rights of its members - however if those laws actually HURT those members, those laws can morally be disobeyed. In fact, Gandhi went so far as to say that a moral person has a moral OBLIGATION to DISOBEY and unjust law. And Gandhi was willing to spend much of his life sitting in a jail cell to support this conviction.
Bottom line is that for me myself, as a Catholic Christian, my moral laws ARE my legal laws. I have to hold myself up to a higher standard than that set on me by society's legal code. This is the spirit of Jesus speech on the Mount - "The law tells you not to kill your brother, but I tell you, you can't even YELL AT your brother," etc. However, whether such moral codes can become legal codes depends ultimately on a) the amount of damage that breaking that code does to us, individually and collectively, and b) whether the damage to society suffered through enforceability of such a law outways the damage of breaking the law in the first place. In such a case, where we can't make it illegal, but its still immoral, the job is left to folks like me at our pulpits, religious teachers, to try to convince people that it is in their own best interests to live lives established by the moral standards of ancient wisdom manifest in our religious beliefs.
Maybe it seems like I've made this situation more complicated, rather than simpler. Maybe your a little ticked at me for doing so. Well, too bad. Because all of these issues, even issues we Catholics consider black and white, like abortion and gay marriage, are NOT black and white, not when it comes to deciding whether they should be illegal or not.