In a previous essay on Legality and Morality: Can Man Serve Two Masters? I considered whether respect for the law is a requirement of morality and presented my case against the proposition. I would like to continue on this theme in the following, looking at the related proposition that moral ends can be served through enacting regulation, and that moral arguments can therefore be used to justify said regulation.
It is often stated as a criticism of behaviour of which one disapproves that “just because it is not illegal, that doesn’t make it right.” This is hard to argue against. The converse is likewise true: just because something is wrong doesn’t make it illegal. But what about the further claim which might be made that if something is wrong, we should have a law against it? Giving a moment’s thought to what that would entail, one soon realises that this is not a feasible way to proceed; even were it possible to enact the required legislation, the law-courts would get so full up that the justice system would grind to a halt. But to think in this way is to ignore the more important philosophical questions that arise in relation to the proposition.
An issue of category mismatch arises from the philosophical distinctiveness of the realms of morality and of jurisprudence which underpin the determination of what is “right” and of what is “legal”. There is no legal theory of what constitutes moral behaviour; nor is there a moral framework for determining what should and should not be permitted in law. This should come as no surprise, given that there is no basis in jurisprudence either to determine a priori what the law should be, nor any coherent moral framework from which the rules of morality can be derived. As enlightenment philosopher David Hume famously evinced, “the rules of morality are not the conclusions of our reason.” Indeed it is not difficult to arrive at opposite conclusions depending on the moral framework from within which one argues. However, such does not appear to be a deterrent against contentious moral arguments being used on a regular basis to argue in favour of this or that new legislative proposal.
As I have argued in The Unintended Consequences of Law, another common category error in the same vein is the conflation of intentionality and causality. Whether a law is a good one is to be judged on the basis of the consequences that flow from it, including with the benefit of hindsight. But lawmakers will regularly muddy the waters by making high-minded assertions of the good that they hope to achieve, i.e. they seek to establish a moral context. At the same time they (and their supporters) often look to marginalise their detractors by suggesting that the motivation of the latter is to prevent the good which they intend. To allow this kind of sleight of hand is to participate in the category error of allowing a moral argument to be deployed where a political one should rightly be used. The question that should be asked is what the likely and possible consequences of the legislation are, not what moral cloak its proponents have donned the better to sell it.
As with so many lessons of “how not to do it” we need look no further than the current Covid-19 crisis for supporting evidence. We in the UK were told when we were taken into lockdown that this was to prevent the NHS from being overwhelmed, as appeared to have happened in North Italy, and was to last for three weeks. International pressure and modelling from Imperial College suggesting as many as 500,000 fatalities was a possibility scared the government into a hasty U-turn from their proposed herd immunity strategy, for which change they bought support and credibility by introducing a slogan about protecting the NHS and saving lives; both unchallengeable moral ends.
The peak of viral infections arrived in London (the only place where there was ever any credible risk of hospitals being overwhelmed) ten days later (see Fig. 1 below). “Protect the NHS” has been dropped from the government’s messaging. The modelling on which the 500,000+ prediction was based has been thoroughly discredited. Another seven weeks on from that, the daily rate of new infections in the capital is almost down to single figures with an expected associated monthly death rate also in single figures, a number which would in normal circumstances be undetectable. In short the entire evidential basis supporting the lockdown policy lies at our feet in tatters. Yet the lockdown remains. As does its unchallengeable moral foundation.
One of the problems with this game is that individual freedom is all too often the loser. Most of the important choices we make in life involve a risk-benefit analysis. It is almost axiomatic that our greatest triumphs are the ones we achieve “against the odds.” But our growing risk-averseness has resulted in our acceding to ever-increasing encroachment of regulation in almost every aspect of our lives. Contact sports are dying out in schools; more effort is invested into achieving equalisation of educational outcomes than in eliciting excellence of performance, which allegedly risks stigmatising the less-than-excellent; and curricula and marking schemes are narrowly prescribed to facilitate annual improvements in educational attainment. When it is pointed out by those who enjoyed the benefits of a more open curriculum that we may be selling students short, there is invariably self-righteous hostility at the “lack of respect” for the achievements and hard work of teachers and students alike. Invariably those who seek to justify removal of our freedoms and protecting us from the exercise of real choice seek to justify it obliquely with moral, or rather moralising, arguments of how they are trying to make society better, fairer, safer, etc. so anyone who thinks differently must be seeking the opposite. And these are just a selection of the issues affecting children, never mind the impositions on the freedoms of grown adults.
Of course, the ensuing arguments rarely achieve anything or go anywhere because they stem from a category mismatch. Two sides who differ on the political question of how much freedom individuals should be allowed are conducting a debate which has been (deliberately) steered off-piste and into the realm of moral discourse: I want this outcome which I define as a worthy moral end, so those who oppose me are unworthy and immoral and deserve to be “called out”. My suspicion is that those who do this usually do so from an innate sense of the weakness inherent in their argument. This is evidenced in the frequency with which it is the person or group expressing contrary views rather than the contrary views themselves that are criticised. One observes this more frequently on social media than with engagements in person, since we seem to lose much of our humanity when we engage in dialogue from behind a keyboard or keypad. (Perhaps revealing ourselves increasingly over videolink in Zoom and Skype conferences will help to bring some redress here.)
It is interesting also how a couple of generations back it was more commonly those on the political right who sought to argue in this way with appeal to traditional values which they saw their opponents as undermining through the dissent they expressed, whereas these days with the influence of traditional values in decline and the Christian religion increasingly confined to operate in a private sphere, the predominant moral narrative is a form of leftist egalitarianism where our virtue is determined by the opinions we express and the justice of the causes we espouse rather than our embodying more traditional notions of virtue involving difficult things like learning patience, demonstrating humility and being willing to make sacrifices. As with a football match, the players come out after half-time and play towards the goal at the other end of the stadium; although the boot may now on the other foot, it is still the same game. Until such time as we finally call time on category mismatch tactics, we will continue to get posturing politicians purveying ill-conceived defective legislation. We deserve better. And we need it.