Take two sets of actions and deeds, in the first set we have “things which are moral” in the second “things which are legal”. There may be overlap. Observing the fights about various things in our (mostly urban/rural cultural divide for which party serves as proxy) like marriage, divorce, abortion and so on .. many if not most people confuse the two and figure what overlap there is (most killing for example) is intentional and what is moral and what is legal in a “good” society would be a very close if not exact match. This. Is. Wrong. Very wrong. It is an unconstitutional and un-American idea.

Here’s the thing. The purpose of the law is to structure our society to promote life, liberty and the pursuit of happiness (and happiness != pleasure but the meaning Aristotle and the like intended).  This structuring of law as constructed in our country leaves morality out of the metaphysical framework underpinning it. “Life, liberty and the pursuit …” is not the 10 commandments. It isn’t a call to act rightly. It isn’t a prescription of how to act or think. Our law is not encoded so that we will be righteous by what ever meta-ethic you or I live by. But free, alive, and able to pursue excellence.

This isn’t precisely true however. You notice our founders made particular exceptions for freedom of religion and the law subsequently has made a point to encourage religious practice. Many, especially of the academic left and press think religion and it’s place in our society is a relic and it’s time has passed. It might be worth noting a really good start in this discussion which shouldn’t be ignored is first to read through this discussion. Then argue from there.

This realization that law and morals (personal ethics) are independent has consequences. For example,

  1. For most, what is moral should take precedence. If you must do something because it is right, you must do it even if it is illegal.
  2. Take abortion as an example. If you think abortion is immoral, don’t do it and don’t advise those around you to do it. If you want to argue that it should be illegal those arguments shouldn’t center on how it is immoral but how it doesn’t exactly give a chance at, erm, life, liberty and pursuits to those who are among the weakest and smallest in our midst (there’s a Rawlsian argument to be made there). You could point out that excluding people from personhood based on particulars of their existence and not the ontology of their being has a very poor history of human rights vis a vis the 20th century. There may be good arguments on the other side of this question, but they are not known to me so I won’t attempt that. Similar “life &c” argument can be made with respect to most, if not all, of those things over with the rural/urban cultural divide quarrels.
  3. Moral instruction for children, an essential responsibility of parents, is quintessential. This is the most important thing a parent can impart to their child. Why? Because the civil environment (law) does not do that. But you can’t be happy (see link above) without ethics. After all ethics can be succinctly coined as a study in what is good (and doing that). Without know what excellence is, how can you be happy?

Filed under: CultureEthics & MoralityJudiciaryMark O.

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