Moral Legislation Research Articles

The Ties That (Un)Bind: Fathers, Daughters, and Pietas in Ovid's Metamorphoses

This article examines the father-daughter relationship, in the context of pietas , in the Metamorphoses . Ovid uses this relationship to explore pietas ' potential for promoting conflicting claims and the consequences of its breakdown. He questions the nature of paternal power and filial loyalty and stresses the potential for both sides to undermine the bond, convert pietas into scelus , or destroy the relationship. Ovid thus criticizes pietas and, through stories of rebellious and independent daughters and cruel and exploitative fathers, alludes to the negative effects of Augustus' moral legislation and Augustus' own role as pater patriae .

We Hold These Truths and the Problem of Public Morality

This essay maintains that although We Hold These Truths represented an important milestone in Catholic reflection on the American regime, Murray’s analysis of public morality and the state’s role in its promotion and enforcement is notably weak and of little assistance to us today. More specifically, it argues that Murray’s analysis is insufficiently philosophical and too concerned with the pragmatic task of forging an approach widely acceptable in the America of his day; that it rests on an artificial distinction between “private” and “public” morality that fails to sufficiently appreciate the essential dependence of sound morals legislation upon the government’s recognition of moral truth; and that it too closely identifies the whole of law’s competence with the scope of its coercive jurisdiction, thus failing to appreciate the directive and educative properties of law and its role in the establishment of conditions conducive to human flourishing.

Should the Law Attempt to Enforce Our Society's Morality? Does Our Contemporary Law Try to Do this at All?

More than a century after Mill wrote On Liberty, the Hart-Devlin controversy revived the debate on the legislation of morality. Opposing morals laws because of their infringement of individual freedoms, Hart argued against “inducing [persons] to abstain from actions which deviate from accepted morality but harm no-one.” His chief opponent was Lord Devlin, who declared, “it is not possible to set theoretical limits to the power of the State to legislate against immorality.” The boundaries of the debate have shifted in subsequent decades. Few jurists would now agree with Devlin’s assertion that government should legislate morality regardless of the truth of that morality. Many would nevertheless argue that the law should attempt to enforce our society’s morality, when that morality is based on principles of practical reasonableness. The public interest is served through a society that encourages virtue and discourages vice. This view, espoused in previous millennia by Aristotle and Aquinas, has been articulated more recently by John Finnis. Despite the persuasive arguments of this ‘central tradition,’ however, Hart’s view seems to dominate our courts and legislatures. Defining a ‘morals law’ as one that governs private individual choices – usually regarding sexuality – by which no other person is harmed, Canadian courts have been heavily influenced by Mill. Although they have seen morality as an issue of ‘majoritarian taste’ that should only be legislated when there is harm to others, they have also referred to shared ‘Canadian values’ in upholding laws proscribing harmless wrongdoing. This inconsistency points to a general schizophrenia in Canada’s legal system: while the harm principle is relied upon in many ‘morals’-related cases, courts have rejected it when it is silent on so-called ‘victimless’ immorality that is socially unacceptable, relying instead on other factors to uphold morals laws. These factors or ‘shared Canadian values’ are none other than the central tradition’s ‘principles of practical reasonableness.’

Between Two Lives: Tiresias and the Law in Ovid’s Metamorphoses

This paper places the legal terminology used in Ovid’s narration of the Tiresias myth (Metamorphoses 3.316-88) in its appropriate lexical and historical contexts, arguing that the story of Tiresias depicts significant changes to the legal system under Augustus, specifically the professionalization of law under the jurists and the regulation of private affairs by Augustus’ moral legislation. Ovid’s use of legal language must be interpreted as something more than ‘atmospheric effects’, and I show that the story, as the centerpiece of the third book, directly connects the intrusion of the public realm into the private realm to legal precepts and concepts of authority.

Morals Laws in an Age of Rights: Hart and Devlin at the Supreme Court of Canada

Constitutional challenges to morals laws - criminal laws intended to discourage self- and other-corrupting acts - have become a staple on the dockets of many constitutional courts. In this paper I examine justifications offered for morals laws that are thought to limit constitutional rights, using the Canadian decision R. v. Butler (1992) as an example. While Butler's holding on the constitutionality of morality-based legislation - and its underlying conception of morality - is famously muddled, critics of Butler have inadequately attended to - or have overlooked altogether - key distinctions of political and moral philosophy that are necessary for understanding morals legislation. The first step toward a sound reading of Butler - and toward a sound account of the place of moral judgment in constitutional decision-making - is to attend to a distinction in the judgment between conventional and merely conventional morality and to the debate between HLA Hart and Lord Devlin that inspired it. I examine Butler through the lens of the Hart/Devlin debate, and then outline an argument for the place of moral evaluation in legislation that prima facie limits constitutional rights.

Deviance and Power in Late Medieval London (review)

Reviewed by: Deviance and Power in Late Medieval London Barbara A. Hanawalt Deviance and Power in Late Medieval London. By Frank Rexroth. Translated by Pamela E. Selwyn. [Past and Present Publications.] (New York: Cambridge University Press. 2007. Pp. xiv, 411. $115.00. ISBN 978-0-521-84730-8.) Frank Rexroth’s study of the marginals and the underworld of medieval London was first published in German as Das Mileu der Nacht: Obrigkeit und Ranggruppen im Spämittelalterlichen London (Göttingen, 1999). The book is a very important one and deserving of a translation to make it more generally [End Page 141] available to an English-speaking audience. The change of title is an improvement, because it places the emphasis on the author’s thesis that by defining deviants, the governing elite increased their own power. The book is divided into two parts that rest somewhat uneasily with each other. The first part is a chronological consideration of the changing mentality of medieval London civic ideas and official thinking starting with the Hundred Years War and culminating with the major moral legislation of John of Northampton at the end of the fourteenth century. The second part of the book deals more directly with the underworld itself, taken largely from the few surviving courts of the aldermen. These courts, Rexroth argues, strengthened the hand of the aldermen and helped to define the expected behavior of citizens of London. These records, however, are sporadically preserved and leave some doubt about their effectiveness in supporting the author’s thesis. Rexroth argues in the first section that London authorities, struggling with keeping peace in the city, focused on differentiating the insiders (the elites) from the other, the good from the bad. The program of marginalizing segments of the population started with Jews and lepers, but then moved on to include prostitutes and sturdy beggars. Foreigners, particularly Italians and Flemish, and new arrivals from the countryside were regarded with suspicion and sometimes became the object of deadly riots. The Hundred Years War brought new levels of xenophobia and anxiety about keeping order. The next crises, the plague of 1348 and subsequent outbreaks of the disease, brought new alarms. The king, Parliament, and London’s elite became alarmed at the increased mobility of the surviving population who sought higher wages. The old order seemed to have become unmoored. The immediate reaction was to try to freeze prices and wages at the 1347 level. Enforcement was difficult, but it gave renewed possibilities for London’s mayor and aldermen to crack down on the vagrants and new immigrants to the city. The Revolt of 1381 gave impetus to more refined definitions of “the other” and more public humiliations of offenders such as the pillory. As reflected in the original title of the book, Rexroth argues that the marginalized groups functioned after dark, but his argument contains contrary threads. He argues that London authorities not only wanted to marginalize people but also wanted to strive for moral purity and transparency of the city laws and ordinances. To this end, they also passed ordinances about butchering, street cleaning, and other aspects of the daily running of the city. But these activities were not all conducted at night, and the offenders were not marginals. The fault of Rexroth’s argument lies in his attempt to weave into his argument all the information available on London’s records. In the process he loses the thread of the argument and stretches the patience of the reader with superfluous data. For a scholar interested in the detail of London peacekeeping, Rexroth’s book is a great contribution. For readers who would like to learn about the [End Page 142] medieval underworld, however, the attempt to tie virtually everything that happened to his thesis obscures the author’s main points. Barbara A. Hanawalt The Ohio State University Copyright © 2009 The Catholic University of America Press

On Fichte’s Concept of Freedom in the System of Ethics

The notion of freedom is a central notion of Fichte's philosophical system. In his letter from 1795 Fichte calls his philosophy first system of comparing its theoretical significance with the import and effect that the French Revolution had in the political sphere. He writes, Just as France freed man from external shackles, so my system frees him from the fetters of things in themselves, which is to say, from those external influences with which all previous systems - including the Kantian - have more or less fettered man. Indeed, the first principle of my system presents man as an independent being.1 For Fichte, freedom is neither an ordinary philosophical notion, a one among others, nor an abstract idea that is conceptuaUzed as merely being opposed to the concept of determinism. Shaped in the context of the thinker's search for the systematical foundation of his Wissenschafislehre, freedom becomes the theoretical principle and also the postulate of his whole philosophy. It would be thus too ambitious to attempt examining Fichte's concept of freedom in one short essay, even if I choose to Umit myself to only one thinker's work. The aim of this essay is more modest; it will discuss only one, perhaps central and the most significant dimension of Fichte's concept of freedom, his principle of autonomy as it is estabUshed in the System of Ethics. I shall first consider Fichte's general approach to freedom and autonomy and how it differs from that of his predecessors, especially Kant's conception. Then I shall tarn to Fichte's account of autonomy and consider its development in the Sittenlehre of 1798. My main focus will be on Fichte's concept of self-determined agency and its fundamental role for legislation of morality. On Kant's Approach to Freedom and Fichte's Response to the Challenge In a general sense, freedom appears for Fichte as a pure self-activity of the (original) I. This, in turn, provides a ground for moral freedom, or freedom of the I that determines itself morally. Kant argued that autonomy was demonstrated by a person who would decide on a course of action out of respect for moral duty. For him an autonomous person acts morally solely for the sake of doing good, independently of other incentives. Such compliance with moral law creates the essence of human dignity. Following Kant, Fichte too believes that the moral will is the chief characteristic of the self. In his systematic, it also appears as the activating principle of the world. Yet he realizes that moral freedom and linked to it awareness of the moral laws cannot be simply given or postulated; they must rather be derived from plausible and non-contradictory principles. The derivation of moral freedom Fichte sought to present in his System of Ethics. Taken systematically, this substantiation and rational justification of ethics does not belong anymore to the project of the Grundlage der gesamten Wissenschafislehre of 1794/95, but rather to the project of the Wissenschafislehre novo methodo 1796/99. Here Fichte does not any longer assume the three separate postulates, but instead he proceeds from a single principle of the finite I. Furthermore, theoretical and practical Wissenschafislehre are not treated separately, but instead it is considered as the one unified theory. As a result of these changes, Fichte modifies his approach to derivation of consciousness, now attempting to derive it from morality and freedom of the I. Fichte views such a derivation as necessary, because he believes that in philosophicsystematical theory the awareness of the moral laws cannot be taken - like in Kant - as a mere fact of the reason. In the Sittenlehre of 1798, freedom is present at different levels of system. From its first appearance here it is already inseparable from the principle of morality and in the further derivation it just obtains a concrete determinacy. Fichte attempts to provide a solution to main systematical issues that Kant could not solve in his ethics. …

Imagination and judgment in Kant's practical philosophy

My aim in this article is to understand the role of imagination and practical judgment in Kant's moral philosophy. After a comparison of Kant with Rousseau, I explore Kant's moral philosophy itself — unlike Hannah Arendt, who finds in the enlarged mentality of the third Critique the ground for the activity of imagination in a shared world. Instead, I place the concept of moral legislation in its background, the reflection on particulars relevant to deliberation, and discuss the mutual relation of reflection and determination. Not only reflection and determination work together; imagination and judgment imply one another essentially, as interpretation of what is relevant, and as a principle of orientation in the choice of the maxim against the backdrop of a uniform and ordered world. The concepts of analogy and symbolic exhibition turn out to be crucial for how reason represents to itself the reality of ideas in the world.

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (review)

Reviewed by: Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 Richard F. Hamm Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920. By Gaines M. Foster. (Chapel Hill: University of North Carolina Press. 2002. Pp. xv, 318. $49.95 clothbound; $21.95 paperback.) Foster's deeply researched and clearly argued book details the relationship between a small number of Protestant Christian lobbyists and the Federal Congress. While readers will learn much about the organizations associated with the Christian lobbyists, this, ultimately, is a book about the "reconstruction of the American state" (p. 7). The Christian lobby, which traced it roots back to the Civil War and was most active from the mid-1890's to 1920, pressed Congress for laws which would "expand the moral powers of the federal government and to establish the religious authority of the state" (p. 1). As a whole the lobbyists (like the multitudes that they represented) saw morality mostly in terms of personal virtue and thus they sought laws which would "control drinking, obscenity, polygamy, divorce, Sabbath observance, gambling, smoking, prizefighting, prostitution, and sex with underage girls" (p. 3). Many of the lobbyists, but not all of them, also sought the adoption of the so-called "Christian Amendment" which would have changed the language of the preamble [End Page 996] of the constitution to include explicit recognition that the government derived its power from God. In seeking these goals, the lobbyists sought to overturn what Foster calls the antebellum moral policy, which left "the regulation of morals to the states and the promotion of morality among its citizens primarily to the churches" (p. 10). In the period leading up to the Civil War, Democrats, especially Southern Democrats worried about the crusade against slavery, emerged as the organized political force against any expansion of the federal government's role in regulating morality. Thus, when the Christian lobby first emerged, its allies in the Congress were Republicans who came into the party out of the reform tradition. But after Reconstruction and the establishment of white supremacy in the South, the Christian lobbyists formed working partnerships with Southern Democrats. With their new allies, the lobbyists (and the groups they represented), pushed through Congress effective federal policies against polygamy, laws banning obscenity and prizefight films from interstate commerce and the mails, and laws that would restrict prostitution, sex with underage girls, and divorce. Most significantly, they were crucial in the creation of the prohibition of alcohol constitutional amendment. While the lobbyists did expand the power of the federal government, the Congress never fully gave them what they wanted. Much of the antebellum moral polity remained intact. Congress never accepted the idea of a federal police power over morality; rather it merely patched together a functional police power from existing delegated federal powers. Congress mostly left it to the states to deal with the regulating of morality. Also, "Congress refused altogether to establish the religious authority of the federal government" (p. 229). Indeed, Congress repeatedly refused to embrace the Christian Amendment and refused to enact nation-wide Sunday closing laws. Moreover, the Christian lobbyists won their victories not by converting Congress to their point of view, but by the mobilizing of political pressure; they expanded the powers of the federal government, but that government "despite their efforts, remained essentially secular" (p. 231). Richard F. Hamm State University of New York at Albany Copyright © 2007 The Catholic University of America Press

La invitación a la libertad en Kant: su significado como concepto crítico-regulativo y su aportación real en el sujeto activo

Based on the conditions of Kantian Theory of Knowledge, this paper investigates the proper place of freedom, considered from the practical point of view in which maxims try to achieve happiness. In the same way, reason recognize the necessary respect for the moral law. Where must freedom be placed? In the elections in the world of sense or in the submit to that law? Assumption of the second propos- al implies to set up the origin of morality in the reason that recognize itself subordinate to moral legislation and it that way becomes an active role in the establishment of morality.

Gaines M. Foster, Moral Reconstruction : Christian Lobbyists and the Federal Legislation of Morality, 1865-1920

L'ouvrage Moral Reconstruction, de Gaines Foster, aide a reveler dans quelle mesure la droite chretienne moderne est semblable et differente de ses precurseurs du xixe siecle. Professeur d'histoire a l'universite de Louisiane (Baton Rouge), Foster livre un examen erudit, fouille, perspicace et denue de presupposes ideologiques des mouvements chretiens de reforme politique des xixe et debut xxe siecles. Il centre particulierement son attention sur les chretiens en place a Washington, ceux-la m...

Review: Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920

Review: Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920

What's it Got to Do with Morality? Moral Rights: An Historic and Contemporary Perspective

Australia introduced moral rights legislation in December 2000, giving effect to a doctrine that originated in civil law jurisdictions in the eighteenth century. The rights given effect to in Australia are the right of integrity, which allows the author to prevent derogatory treatment of their work, and the right of attribution, which mandates attribution of the author when the work is reproduced, published or otherwise communicated to the public. There is also the right to prevent false attribution of authorship. This article looks at the historical development of moral rights and examines why such an amendment to the law in Australia was necessary in a contemporary context. It discusses the implications of this amendment for the media and other industries.

Spin doctors and moral crusaders: the moral panic behind child safety legislation

Issues of child abduction and molestation have risen so high on social agendas that they have all but eclipsed similarly offensive crimes. Media broadcasts of a rash of child abductions, molestations and homicides have led to a nationwide moral panic concerning the safety of children. The media frenzy surrounding these publicized cases has created a ‘fear factor’ among parents and caregivers, begging the question as to whether the incidence of child abduction and molestation has increased or whether the nation’s heightened sensitivity is a result of increased media reporting. This article explores the present climate of fear by way of five moral panic criteria developed by Goode & Ben‐Yehuda. This link between the child predation moral panic and child safety legislation is explored in the context of the recently enacted Amber Alert. Similarities are demonstrated in the origin and empathy of both the Amber Alert and its predecessor, Megan’s Law.

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920. By Gaines M. Foster. Chapel Hill: University of North Carolina Press, 2002. xvi + 318 pp. $49.95 cloth; $19.95 paper.

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920. By Gaines M. Foster. Chapel Hill: University of North Carolina Press, 2002. xvi + 318 pp. $49.95 cloth; $19.95 paper.

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (review)

Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 (review)

Morals Legislation and the Establishment Clause

In my essay entitled Morals Legislation and the Establishment Clause, I argue that in Lawrence v. Texas, the Court correctly concluded that morality alone was not enough to justify legislation. Unlike, the Court, I predicate that conclusion on the Establishment Clause. In my view, morals legislation should be divided into two types: Morality simpliciter and purposive morality. Purposive morality, i.e., morality predicated on a legitimate secular rationale, presents no Establishment Clause problem. But morality simpliciter, i.e. that which is immoral simply because somebody says it is immoral, violates the Establishment Clause.

Reviews of Books:Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 Gaines M. Foster

Reviews of Books:Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 Gaines M. Foster