Monday, November 17, 2008

On legal moralism

Lady Warnock's piece in the Observer today was, I thought, extraordinary. This is not because she advocates legal moralism - we've become used to this, especially recently. Rather it's the ambition she has for it:
"Kingsley Amis once said, truly: 'Nice things are nicer than nasty things.' On this hangs all morality. It is because we know that some things are intolerable, and other things are admirable, that we can talk confidently about violations of human rights, or of a better society. It is only because we have this knowledge that we can teach small children to put themselves in other people's shoes, to sympathise with those who are unfairly treated, or who are suffering, and so, in turn, they can avoid treating others unfairly or doing harm. Because we have this knowledge, we can teach children the elements of morality."
She then goes on to imagine that the state can and should all but eliminate prostitution and drug abuse. To argue otherwise is, as the above selection indicates, to surrender to moral relativism:
"Most actions that are criminal offences are also morally wrong; and when morality and law begin to diverge, society is in trouble."
One would hope all criminal offences are morally wrong - because if not, why would they be criminal offences? But the converse does not hold - the idea that something is immoral, ergo it should be illegal. The law should set a floor for human behaviour, not a ceiling. This has nothing to do with moral relativism - it's just a recognition that for liberty to endure, a distinction can and must be made between what is a crime and what is a sin. To go beyond this is to go beyond even traditional authoritarian conservatism and enter the proto-totalitarian world of Calvin's Geneva.

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