Divorcing Morality from Criminality

There has been much discussion about where morality sits when it comes to criminal laws. Some say that morality forms the fundamental basis for law and thus anything immoral is illegal and visa versa. Others say that we shouldn't "legislate morality" and should restrict our laws to what doesn't directly harm others. Most people, I think, are in the middle of these poles. Both poles, interestingly enough lead to the same end: judicial tyranny or complete anarchy.

To make everything that is immoral illegal and visa versa would be disastrous. Myriad acts in society are immoral. Yet we have chosen as a people to allow our conscience and society--not our legislature--decide the punishment. These "immoral acts" include lying in personal contexts, cheating, infidelity in marriage and some would say certain sexual acts. Many people in society see these things as morally repugnant, but they are allowed because our society has effective sanctions in ways other than criminal law to combat them or we are in flux as to whether we think they are right or wrong. More importantly, though, I think we realize as a people that we must be allowed to make choices (even bad ones) if we are to become autonomous self-actualized beings. To allow our government to intercede in all things moral and ethical would create a police state not unlike the greatest horrors we have seen both in history and literature. Or we have laws that no one follows, laws aren't enforced, law loses its legitimacy and anarchy ensues.

On the other hand, to divorce morality from criminality completely would lead to the same result. Common morals, whether we like it or not, form the very foundation of our society. They are the foundation of community and they represent what is greatest in each of us. We have been legislating morality since the birth of our nation. If the belief in personal freedom, equality, tolerance, and growth towards a more perfect union are not moral goals, then what are they?
And If we do not base our laws on common morality, then what do we base them on? Political expedience? Laws in such a regime would quickly degenerate to a strictly majoritarian tool of enforcement (some would say it is already). No longer will the law have any sense of legitimacy or value in precedent. No longer will people follow laws because they feel they are inherently right. If people don't see the laws as inherently moral, they will stop following them whenever they are not being watched. No society can long survive when people don't follow the laws mostly on their own initiative. The government would quickly evolve into the most intolerant police state imaginable in order to preserve itself. Or, as above, we will have laws that no one follows and are not enforced, law loses its legitimacy and anarchy ensues.The very danger that anti-moralists decry is the very end which they would help bring about.

So, how about basing laws strictly on what does or doesn't affect others? I think Ms. Steele's points on individual actions affecting others are well founded. If I may add my own spin, many have been deceived into thinking that any behavior, no matter how abhorrent, should be tolerated, inasmuch as it doesn't affect another's personal liberties. In truth, none of us live in a vacuum and all actions of the individual affect the community. Many "personal choices" have merely time-delayed reactions, and their repercussions are not felt until they have been left to flourish. By the time they have ripened, they have rotted the inner core of our society. Thus, sometimes, as a society, we would be better off to be a little more far-sighted.

But as a society based on plurality and diversity, whose morals and values do we base our laws on? Therein lies the problem and the solution. In my opinion, we should as a people search for the common morals we all hold. Society should encourage morals, not discourage them as much of popular culture does. For those who believe that "morals" are outdated and archaic, perhaps they should propose an alternative that would allow society to continue to grow. But we should be wary in changing the laws, either in the name of "tolerance" or in "upholding our common morality."

Criminal laws are an innappropriate battleground upon which to wage wars of society. Strong moralists fight there because they feel they are losing the hearts and minds of the masses to a popular culture devoid of moral reasoning. Strong anti-moralists fight there because tradition, moral values and precedent are against them.

Both sides are wrong to use this most ugly and brutish arm of our law to push their agendas. Both sides should take their cases to the American people and allow them to decide. Rather than engrave their positions in rock-solid law (only to have that rock crumble under the next regime--thus weakening the very foundation with each successive edifice), they should attempt to present their positions as societial aims and leave the laws alone. Only when a law is so oppressive to a minority that it offends the character of our nation should it be changed. And only when behavior is so repugnant to our national character that it threatens to undermine society should a law be made against it.

Have I answered any questions or just restated them? Yeah, I'm not sure either.