Legal Enforcement of Morality

Abstract

In modern Western political and legal thought, the subject of legal enforcement of morality is narrower than the literal coverage of those terms. That is because much legal enforcement of morality is uncontroversial and rarely discussed. Disagreement arises only when the law enforces aspects of morality that do not involve protecting others from fairly direct harms. More precisely, people raise questions about legal requirements (1) to perform acts that benefit others, (2) to refrain from acts that cause indirect harms to others, (3) to refrain from acts that cause harm to themselves, (4) to refrain from acts that offend others, and (5) to refrain from acts that others believe are immoral. Answers to some of these questions may be affected by whether the relevant moral judgments are essentially religious. Subsidiary questions concern the appropriateness of taxes adopted to discourage behavior the government should not forbid outright and the appropriateness of prohibitions on others profiting from such behavior (as when someone lives off the earnings of prostitutes). Since it is rare that one argument for restricting behavior will stand by itself, with no other arguments supporting restriction, a conclusion about a single theoretical issue will not usually yield a decisive answer as to whether any particular behavior should remain free. However, a conclusion that some argument for restraint is unwarranted can significantly affect the overall power of the totality of arguments. For example, if someone concludes that the claimed immorality of homosexual behavior is not a proper basis on which to forbid it, this will substantially affect the overall strength of reasons in favor of prohibition. A final subtlety concerns two perspectives from which to consider the subject of the legal enforcement of morality. One perspective is