Let a student announce that law and morality are separate things and that morality can’t be legislated. Many heads will dutifully bob up and down expressing agreement. Bumper sticker philosophy rules.
Normally, one would resort to some great Christian master or other purveyor of natural law arguments to dispel the haze.
But I came across something from Jeremy Bentham, the utilitarian and opponent of natural law, that caught my attention. In chapter XII of his Principles of Legislation, he argued (much to my surprise) that law and morality are part of the same whole.
Run your eyes over this:
Morality commands each individual to do all that is advantageous to the community, his own personal advantages included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, although morality does so. In a word, legislation has the same centre with morals, but not the same circumference.
In other words, some morality can and should be legislated, for morality and law share the same center. I doubt St. Thomas would have disagreed.
March 31st, 2010 | 10:49 am
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March 31st, 2010 | 11:18 am
It would seem that Bentham had been reading his Aquinas(!).
March 31st, 2010 | 9:38 pm
Generally, I suspect that they tend to be thinking of “Prohibition of Alcohol” rather than “Prohibition of Rape” when they say such things but, being children, do not have a decent vocabulary yet nor a clear enough head to use it if they had it.
I would, instead, say that attempts to legislate matters of taste as if they were matters of morality usually result in state-sponsored immorality on a mass scale so we ought really err on the side of “matter of taste” when it comes to questions of “do we want police to cart people off to Bentham’s Panopticon for doing something that is debatably a Matter of Taste?”
I would think that Conservatives, particularly, ought shy away from attempts to legislate matters of taste as if they were matters of morality… because surely they have seen the transformation of matters of taste into matters of morality seemingly overnight.
What will tomorrow’s “Smoking While Pregnant” be? Will you be guilty of it?
Will you wonder when we started legislating morality?
March 31st, 2010 | 9:49 pm
This assertion by Bentham is really not that superising. Utilitarianism, the moral theory that he espoused, is the notion that we should do the greatest good, for the greatest number of people. And what constitutes a ”good” in his, and many of his followers eyes? Pleasure, is a good, pain, is negative, to be avoided. What would be one of the best ways to implement this ethical theory? Through legislation, of course. Bentham would have no patience with the mindless political correctness that has drenched our public discourse, whose advocates assert that morality has nothing to do with legislation passed by governments.
April 1st, 2010 | 4:05 pm
Hidden within the statement, “we should do the greatest good, for the greatest number of people”, is that there is such a thing as the greater good apart from individual good. Enslaving ten percent of population is perfectly consistent with his proposition, even if he would deny it, if the other ninety percent gain some “good”, e.g. pleasure or money, by it.
In the end, it replaces morality with some social utility calculus.
Bentham and his ilk, e.g. Oliver W. Holmes Jr., were enemies to the constitution and the legal system.
April 1st, 2010 | 10:23 pm
Hi Jeff: I do not find Bentham and his version, or any version, for that matter, of Utilitarianism convincing, but I do not think you’re being fair to him, or his system. There are various nuances within utilitarianism. He, I believe, would be against enslaving ten percent of the population, for the ”greater good”, because it might have unintended consequences, such as disrespect for the law, fear on the part of the remaining ninety percent that they might be sacrificied as well, sorrow on the part of, say, the friends and relatives of the ten percent, that could cause greater suffering, than pleasure, and therefore be inconsistent with the utilitarian maxim of the greatest good for the greatest number. It doesn’t replace morality with some social utility calculus, precisely, because it IS a moral system, however misguided. Holmes, the great legal thinker and supreme court justice, did base his legal decisions, at least to a large extent, on pragmatism, and utilitarianism, but this does not make him an enemy of our legal system. This just makes him, perhaps, wrong; this is an essential distinction to make.
April 9th, 2010 | 12:19 am
The ultimate problem with utilitarianism is that many (not necessarily all) utilitarian philosophers reject stringent deontological principles and prefer to calculate things by “happiness produced” (whatever that means). But notice these judgments that utilitarianism has to make to justify itself:
1. Utilitarianism is a good moral theory.
2. Achieving good ends is the things all societies should strive for.
3. Maximizing pleasure and minimizing pain is good.
None of those are utilitarian judgments; those are deontological judgments about the nature of morality. A consistent utilitarian would have to say, “if it’s good to maximize happiness in situation X, then it’s good” and resort to total situation ethics, but utilitarians don’t try to do that.
I’m interested to know how, epistemologically, Bentham distinguishes between what morals should be legislated and which ones ought not be. Per utilitarian thinking it’d be very difficult.
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