There are and throughout history always have been two different, incompatible views on the purpose of law in any society.
The first view is that the purpose of law is to enforce virtue. Hence, we outlaw murder because murder is morally wrong; we outlaw theft because it is morally wrong to steal the property of another; we outlaw sexual intercorse with a person not one's spouse because such intercourse is morally objectionable.
This is the view of law embraced by almost all social and religious conservatives. Such prominent figures as Edwin Meese, Charles Keating, and John Ashcroft have espoused this view of law (Keating once told Congress, "I say legislate morality, and then enforce those laws!"-ironically, he was later convicted of embezzling money from Lincoln Savings and Loan, causing a collapse that triggered the destruction of the entire savings and loan industry).
The opposing view is that te function of law is to provide a stable foundation upon which to build a society rests, but providing this stable foundation is not a question of morality. So, murder is illegal because a society can not function if its citizens can kill one another with impunity; theft is illegal because the social system of financial exchange can not function if its members are free to steal from one another or defraud one another; but the regulation of consenting adults' sex lives is a matter outside the function and purview of the state, as it does not affect the ordinary operation of practical social systems.
I personally adopt the second view; regulating morality is not and never should be the proper role of the state. I doubt that you will find anyone who embraces one view who will accept the other, however.
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Date: 2007-02-12 09:48 pm (UTC)The first view is that the purpose of law is to enforce virtue. Hence, we outlaw murder because murder is morally wrong; we outlaw theft because it is morally wrong to steal the property of another; we outlaw sexual intercorse with a person not one's spouse because such intercourse is morally objectionable.
This is the view of law embraced by almost all social and religious conservatives. Such prominent figures as Edwin Meese, Charles Keating, and John Ashcroft have espoused this view of law (Keating once told Congress, "I say legislate morality, and then enforce those laws!"-ironically, he was later convicted of embezzling money from Lincoln Savings and Loan, causing a collapse that triggered the destruction of the entire savings and loan industry).
The opposing view is that te function of law is to provide a stable foundation upon which to build a society rests, but providing this stable foundation is not a question of morality. So, murder is illegal because a society can not function if its citizens can kill one another with impunity; theft is illegal because the social system of financial exchange can not function if its members are free to steal from one another or defraud one another; but the regulation of consenting adults' sex lives is a matter outside the function and purview of the state, as it does not affect the ordinary operation of practical social systems.
I personally adopt the second view; regulating morality is not and never should be the proper role of the state. I doubt that you will find anyone who embraces one view who will accept the other, however.