“In a closed society where everybody is guilty, the only crime is getting caught. In a world of thieves, the only final sin is stupidity.”

Introduction

In two lines, Hunter S. Thompson deftly captures the end of conscionable conduct and the utter neglect for the sanctity of fundamental facilities of society. But hope remains. Ouxtent to which morality can, if at all, be compromised for other competing ends.

amples over individual rights in its aggregating of preferences and satisfaction. As Robert Nozick writes, unlike individuals, social entities cannot be made to make sacrifices for greater benefit or avoid harm by utilizing individuals for the benefit of others. This act disregards the fact that individuals are separate entities, and “his life is the only life he has.”

The legislating of morality would be incompatible with the staunch libertarian stand that disallows such laws, which in their view are coercive and an affront to freedom and self-ownership. To the libertarian, only a minimal state – that enforces contracts and keeps the peace would be permissible. Legislating morality brings up another issue of whose morals do we take as the benchmark to be applied universally to the governed. Would such a law also inflict someone else’s moral will upon me?

The Kantian doctrine answers this question. Kant depends on the idea that humans are rational beings, capable of acting freely. According to Kant, acting freely is to be autonomous, abiding by laws we give ourselves – not according to nature, which would be heteronomous, and moral accountability arises from autonomy (we cannot be held responsible for things we have no control over). Kant adds that acting morally is to act out of duty to the moral law. Sandel’s interpretation of Kant on what ensures that one individual’s moral law would not differ from another is that when we will the moral law with pure practical reason, it is not contingent on personal conditions. Pure reason transcends the differences between people, and everyone would be led to the same, universal categorical imperative. This idea addresses the concern of imposing one’s morals on another for the same conclusion is reached.

Like America in the Declaration of Independence, most democracies have subscribed to a government mandated by the people. However, it becomes uncertain if the rights that these governments secure, if at all, are still the same unalienable rights endowed by a divine order or nature. The evolution of society in its ideologies, priorities and conventions has resulted in competing goals that divert our attention away from ethical issues towards other economic, political and social ends. Profits and personal interests have relegated ethical considerations to be a mere afterthought. If the sanctity of our liberty were being discounted and compromised for material gain, it would hardly be long before the cardinal concept of unalienable rights becomes subordinate to earthly possessions (?).

Trusting In Humans (?)

Ethical theories applied in a utopian setting would achieve this result – the individual’s right to life, liberty and property are respected and not threated; people act autonomously, in accordance with laws they set for themselves, and the motive that compels these actions stem from a respect for duty rather than some self-serving end. However, as sceptics and pragmatists, cynical about man’s ability to act virtuously even without supervision, believing that all of society will act in accordance with their moral law is a pipe dream. This is even before externalities come to bear on an individual’s predicaments e.g. poverty, inequality, war, that again may sway humans from obeying the moral law. It is here, that the fundamental concept of the anarchist at its core falls apart; the impracticality of a society without a repressive force to govern the actions of those who may stray from moral path.

It has been established that autonomy is to act out of duty to the moral law that we freely choose for ourselves, and as Kant reasons, would be the same moral law that everyone arrives at by way of pure reason. Also, if history is any indication, it is clear that if left to the individual’s discretion to abide by morse who comply with their moral law) is at stake, it may be unwise to take a chance on human nature and perform reparative actions to right wrongs that could have otherwise been completely avoided.

The Blunt Amendment

Much attention has been drawn to ObamaCare, with specific reference to the mandatory provision of contraception coverage for employees. While the act exempts institutions with religious practice as its primary purpose from compliance, religiously affiliated organizations are not granted this exemption. Outraged Catholic bishops see it as coercing Catholic employers to condone and fund something contrary to Catholicism.

The Blunt Amendment soueople to buy healthcare, it won’t stop there […] its about the right of any American to live out their faith without the government picking and choosing which doctrines they are allowed to follow.” At the opposite end, Democrats do not approach the issue as religious oppression but as provision of coverage for drugs fundamental to women’s healthcare.

The Amendment if passed would have subjected Americans to suffer the religious doctrines and morals of their employers, regardless of personal faiths. Justifications from either camp on this legislation revolve around the law imposing morals upon others. But consider the scenario where employers “alter” their beliefs in order to exploit the Amendment to save on employee healthcare spending. What then do we make of such actions? Women would be penalised for their religious beliefs and employers can skirt around the la while, using religion as a shield against legal action.

This example captures the dilemma that surrounds the legislation of morality as it inevitably results in a coercion of will. While concessions have been made for religious institutions, it may not be practical to extend them to religious affiliates for fear of abuse. That the concession is evidence of the reverence held for the right to religious freedom as an unalienable right. The motive of the action was therefore out of duty, with homage duly paid to religion. However, pragmatism necessitates that concessions cannot be given freely lest more rights be infringed.

Same Sex Marriage and Homosexuality

Does same sex marriage defile a divine order that forbids such unions which religion has reviled to be a sacrilege? Why should the state sanction such actions if it poses no threat to the unalienable rights of others? Can the state remain neutral?

Sandel referenced Justice Marshall of Massachusetts Supreme Court that there are three parties to a marriage: “two spouses and an approving state”. Marriage goes beyond just the choice of two individuals but requires social recognition conferred upon by the state. Marshall challenges the widely purported claim that the telos of marriage is for procreation (as the ability to procreate is not a condition for marriage) but of mutual commitment instead. Looking at the virtues that the institution of marriage immortalizes, it is clear, personally, that the value of commitment takes precedence over procreation. Restricting gay marriage suggests that the commitment that homosexuals can have toward one another are less genuine and deserving of value compared to heterosexuals. The wider problem of such a stance is the dangerous repercussion it has on the social fabric where intolerance festers and presents graver problems of discrimination and victimization.

To further illustrate the gravity of demonizing homosexuality I allude to the string of teenage suicides under presidential candidate Michele Bachmann’s district of Anoka-Hennepin, Minnesota. In a short span of 2 years, the district’s high schools saw nine deaths, all related to discrimination and victimization at school. Under the “No Homo Promo” policy that was strongly supported by Bachmann, schools were prohibited from broaching the subjects on homosexuality for the abomination the state perceives it to be. This strong aversion to homosexuality that Bachmann describes as “sexual dysfunction” amounting to “personal enslavement” had cultivated a climate of fear and repression. After nine suicides, the district has finally decided to retire the anti-gay policy. Should Bachmann and her fellow conservatives hold back on their zealotry if it could provide a safer environment for impressionable adolescents and social communities?

Harlotry

If prostitution is a voluntary choice by consenting individuals, is it morally permissible or should it even be legalized? Sex trade is frowned upon in many societies for it, among other things, profanes the dignity of the human body and is a social vice. The idea of consent opposes the libertarian notion of self-ownership and the justice that flows. Moral laws that prohibit prostitution violate this principle. Is the dignity of the human body such a fundamental right that is so innately ours, that even we are not at liberty to give them up or sell it away? Regardless, why should governments sanction consenting violations of unalienable rights?

For governments that legalize prostitution, it is curious since it suggests and acceptance of harlotry to be morally permissible. Like demerit goods, prostitution creates negative externalities for society, but is seen on a different level because of the carnal knowledge involved. But given the substantial revenue steam from these social vices, it does leave one wondering if its legalizing is purely to divert revenue which would have been lost to a black market, into government coffers instead, or purely a respect for the individual’s right of choice.

Conclusion

To guard the last vestiges of human morality, that seems to be ebbing away from man under the pressure of competing priorities, legislating morality sets a common bar that sanctions our conduct. It serves as the last bastion where questionable conduct crosses the threshold of the law into a punishable act. After studying the works of numerous theologians, the law ultimately turns back to the utilitarian theory, guided by pragmatism, in weighing the costs of respecting the unalienable rights of all individuals equally. Ascertaining the possible areas for abuse, if liberty were to be respected (e.g. contraceptive coverage laws), may well be the litmus test for legislating morality.

References
Michael Sandel, Justice with Michael Sandel
Michael Sandel, Justice: What is the Right Thing to Do
Sabrina Rubin Erdely, One Town's War on Gay Teens, Rolling Stones
Jennifer Bendery, Roy Blunt On Contraception Debate: 'I'm Confident This Issue Is Not Over, Huffington Post