Monday, October 20, 2008

Legislating Morality

"Ultimately ... the control of the economic system by the markets is of overwhelming consequence to the whole organization of society; it means no less than the running of society as an adjunct to the market. Instead of the economy being embedded in social relations, social relations are embedded in the economic system.

--Karl Polanyi, The Great Transformation

Many libertarians are hostile toward the notion of "legislating morality." The lurking assumption is that a distant and oppressive State interferes with our in-born or natural freedom-loving proclivities. Morality - particularly in contested areas - should be a matter of choice, not oppressive and often unworkable State mandates. Examples like Prohibition or efforts to restrain recreational drugs, pornography or prostitution (and the inevitable black markets that such efforts generate) are offered as evidence for the futility of such impositions upon our freedom.

Undoubtedly there is a great deal of truth to this argument. However, this argument begins in medias res. To the extent that "moralists" engage in this debate and in this form, they have already given away the game: they begin with the assumption that "morality" is "legislated" by the State. They begin with the base assumption that humans are naturally free actors seeking to maximize their utility, most basically by increasing their pleasures and decreasing their pain or inconvenience. At the most fundamental level, as modern Americans and intuitive Lockeans, we begin with the assumption that we are naturally free and only secondarily and artificially constrained. Beginning with that assumption, all morality must be understood to be legislated, since in our natural condition there is no legislation and no "morality," only freedom. We understand societies to exist to preserve maximal amount of individual freedom and provide only the minimal amount of constraint in order to provide some security and stability.

We should notice that this basic assumption is shared by adherents on both the political Left and Right in our country, albeit touching on what are regarded as distinct spheres of human life. For the political Left, these libertarian assumptions are thought to apply to our personal and especially sexual lives. An example of this assumption can be seen in the argument that is typically used against conservative advocates of teenage sexual abstinence (evinced in the visceral hostility to Sarah Palin): "teenagers are going to do it anyway, so we should teach them about birth control." It underlies the contemporary insistence that the innate, genetic sources of homosexuality should be regarded as despositive in any further arguments regarding sexual behavior: if it's natural, it will and needs to be acted upon. At Georgetown, we now have a Resource Center for LBGTQ students; what we do not have is a Resource Center to support students who might seek to remain sexually abstinent, or even one that encourages abstinence among all students, regardless of sexual orientation. And this is a Catholic university, we are told.

This basic assumption underlies many of the economic assumptions of the Right, as well: the free market is populated with homo economicus, countless self-seeking, risk-taking, profit-seeking self-maximizers. To the extent that our market system is arranged to prevent obstacles to those behaviors, we can expect a dynamic and prosperous economic system. Legislation that restricts self-maximizing activities are abhorrent, curtailing growth and dampening the spirit of entrepreneurialism. These assumptions underlie arguments against regulations that potentially damage the bottom line, or efforts to soften the harsher aspects of the free market system - such as welfare - that undermine our natural economic incentives.

For the past 30 years we have considered debates in the first realm - between those seeking greater liberation especially in the sexual realm, and other areas of personal life other than economically - to constitute our "culture wars." Republicans have been able to win elections by appealing to the deep insecurities of "Red State" Americans who dislike the cultural and sexual libertarianism of our metro-sexuals (people who know no sexual boundaries, not even gender...). As Thomas Frank famously argued, these people were even willing to vote against their own economic interests as long as they believed that the expansion of cultural libertarianism would be thwarted by conservatives.

That didn't happen: our culture is more thoroughly sexually liberated today than it was thirty years ago when the "conservative revolution" began. One need only look at popular culture for confirmation of this trend: our most popular television shows are no longer the likes of "The Waltons" (a show that ran from 1972-1981, the first year of Reagan's first term), but rather shows like "Will and Grace," "How I Met Your Mother" (a show about serial couplings that precede marriage), and "The Sopranos." Occasionally, a "conservative" movie makes a splash - such as "The Passion of the Christ" - showing what an outlier and abnormal things such a worldview is in our broader culture. Ronald Reagan was our first divorced President, and John McCain would be our second - a fact that was a minor issue in 1981 and a complete non-issue today. Young people today largely operate in a world without sexual norms - other than the prevailing norm that the default is to be sexually active at a young age. Meanwhile, the great issue for conservatives over the past 30+ years - Roe v. Wade - remains, and is likely to remain, the ruling precendent. Social conservatives have arguably lost their main battles over the past 30 years, while economic libertarians have won many of theirs.

With the recent economic crisis, issues of the "culture wars" have receded almost entirely. There are no commentators remarking on the fact that pro-life Obama supporters are "voting against their interests." The main assumption, that is, is that economic concerns will necessarily trump cultural concerns when economic conditions grow severe enough to make any other issue irrelevant. We are, and remain, self-seekers by default. We will not be able to create an extensive social network any more than Europe has been able to robustly retain those social networks it created in the nineteenth century. Market forces have forced them to begin dismantling a number of their social nets (just as it has forced some nations to abandon traditions, such as the demise of the "siesta" in Spain), and will inevitably prevent an Obama administration from creating an expansive new social administrative structure. This was evident as soon as the primaries moved out of the Midwest, where - to win votes - he made noises about renegotiating the NAFTA treaty to the advantage of the manufacturing industry, only to discover (in one instance, by a reassuring meeting of an Obama economic advisor with Canadian officials) that these commitments were actually the result of "overheated" campaign rhetoric (heat that was briefly shared by free-marketeer, Hillary!). With or without a renogotiated NAFTA, the truth is that over-regulated industries will look offshore; support for Unions to negotiate high wages will be undercut by cheap-labor markets abroad; and anexpanding tax bases for a social net will drive corporations to find havens offshore.

The truth is, you really can't "legislate morality" - either of the sort that would seek to force us to restrain our hedonistic personal pleasures or the sort that would seek to force us to be socially responsible in the economic realm. We tend to think that "legislating morality" only applies to "social" and "cultural" issues, but it applies equally to the economic realm, and will prove as unsuccessful there under a Democratic president as it has proven in the cultural realm under a succession of Republican administrations. We should recall that while Ronald Reagan governed during a time of growing sexual liberation, Bill Clinton's presidency coincided with one of the wildest decades of market excess ever known. Party affiliation matters far less than underlying cultural, economic, and - most deeply - philosophic assumptions.

Seeking to "legislate morality" is to acknowledge that the base presuppositions of a culture have made it resistant to any such imposition. A culture that has robust forms of learned or habituated restraint as a matter of cultural transmission does not need to "legislate" such morality, or - if it does - it serves as a punctuating norm, not an external imposition. We don't experience the law forbidding murder as a form of "legislated morality," largely because the norm of not murdering is widely accepted. Law is only experienced as such an imposition when the prevailing norm has been eviscerated or does not exist. Morality can be legally sanctioned, but not created whole cloth out of law. For this reason, efforts to "legislate morality" either in the cultural or economic realms are currently doomed to failure. What is needed is a change in culture, not our legal code.

Can this be achieved? It is not likely. So long as our operating paradigm is the belief that law and morality are externally generated impositions, there will be no stopping the dissolution of any forms of social and cultural constraint. Our cultural wasteland has the same sources as our economic catastrophe: both are the result of a culture that has proven incapable of withstanding the corrosive solvent of liberal assumptions about human nature. Begin with a belief in human beings as naturally autonomous and free, and after a time - not immediately, but eventually - that belief will act as a corrosive agent that will destroy all forms of culturally transmitted and embedded restraints. Any such restraints will be experienced not as "natural" features of our human landscape - as constitutive parts of what is is to be a person living in this culture - but as arbitrary impositions on my natural freedom. Unless and until this basic assumption can be contested - and at the moment, our main "parties" deeply share it in one form or another - we need to see our discrete debates as distractions from the greater battle that needs to be fault. Until a vocabulary can be developed that speaks to the true sources of our contemporary anxieties - both economic and cultural - the "Left" and "Right" can expect to continue to lose the battles that it cares most about. The victory of Obama will be no less Pyhrric than that of Reagan, though the current gnashing of teeth on the Right, and the near-ecstasy of those on the Left, only serves to obscure this deeper truth.


Oskar Chomicki said...

I have spent countless hours trying to persuade Republicans that they simply buy into a different branch of modernity than the Democrats. The fact that the Republican brand has contained an admixture of religiosity has really magnified the differences beyond what they truly are. But it's hard to demonstrate to a partisan that first principles are far more crucial than policy differences in the long run. We are all autonomous Lockeans now...

Anonymous said...

Isn't the Roman Catholic church one enormous abstinence support center? If this is not true in practice it is true in theology.

The Eastvold Blog said...

I don't share your pessimism about the degradation of culture, particularly in the sexual realm. All indications are that the abortion rate has declined somewhat (although we'll have to see what the economic downturn does), teen pregnancies have become less common, and I know I've seen one study showing that today's teenagers are more likely than the previous generation to believe that abortion is wrong. You also have abstinence clubs springing up on many, many high school and even college campuses. Colleges may not be providing students with the resources to choose abstinence, but in many cases, students are helping themselves and each other. It is widely recognized that feminism today is "softer" than its predecessor - more politically moderate, more tolerant of stay-at-home moms, more likely to co-exist with orthodox religious belief, etc. Certainly the younger generation has a pretty strong ethic of choice and freewill - but I think they may be more likely to make (or counsel, if asked for advice) traditionally moral choices.

I hope I'm right!


papabear said...

eastvold blog: how about the STD rates?

Black Sea said...

You can't legislate morality, but you can think seriously about how legislation insulates and protects people from the consequences of actions that - through moral strictures - were in prior years condemned.

The sexual impulse is obviously a part of human nature, and one would assume is no stronger now than in the past. What has changed is the assumption that the consequences of sexual behavior which would formerly have been considered reckless have now become a matter of state responsibility.

It seem to me to be one of those dour laws of human nature that as the adverse consequences of our actions are minimized, our propensity to engage in those actions is increased. However, as regards sexuality, I don't think there is a "solution." All societies struggle with the gap between the impulses of human nature and the needs of the society, and they all produce at least some adverse consequences in their attempts to deal with sexuality.

It's a dilemma.

Ron Appleton said...

Your post seems to miss the point. Law is rooted in morality. We have declared something right or wrong (judged its moral standing) simply in the passing of the code. Now it's true that we may simply be confirming what is already evident (such as murder is an evil), but we have an extensive legal system to make right-wrong distinctions.

This is where it is helpful to be a Calvinist, for the Calvinist understands that law restrains the sin impulse. The role of society is to hold back chaos. Law is the agent. Where a society lives by humility, repentance, grace and mercy, liberty can thrive. Without Christ, though this is impossible. So the argument should not be about whether we can legistate morality but rather what the condition of man is and what the appropriate response to that condition is.

robert said...

From Solzhenitsyn:

"It is feasible and easy everywhere to undermine administrative power and, in fact, it has been drastically weakened in all Western countries. The defense of individual rights has reached such extremes as to make society as a whole defenseless against certain individuals. It is time, in the West, to defend not so much human rights as human obligations.

“Destructive and irresponsible freedom has been granted boundless space. Society appears to have little defense against the abyss of human decadence, such as, for example, misuse of liberty for moral violence against young people, motion pictures full of pornography, crime and horror. It is considered to be part of freedom and theoretically counter-balanced by the young people's right not to look or not to accept. Life organized legalistically has thus shown its inability to defend itself against the corrosion of evil."

Jack Whelan said...

@ ron appleton. I'm late to this, but I thought I'd put in my two cents to defend Deneen's basic point, although I'm not sure he'd agree with it.

In a globalizing, pluralizing world, one has to develop transcultural principles, and the modern rights tradition provides a far more robust framework for doing that than a traditional morality framework.

The idea of rights, of course, has roots in premodern moral thinking about society, but we've seen time and time againg that the appeal to traditional morality can be used to justify clearly immoral but socially acceptable behaviors.

You can make a Christian argument, for instance, against slavery, but lots of Christians did not find it compelling in this country in the 19th Century, and they used traditional sources to bolster their arguments in defense of it. If you accept the premise that all humans have inalienable rights, there is no counter-argument against slavery. You are forced to make an argument from tradition (this is what we've always done) or raw power (Make me change; I dare you).

The same is true about legislation about issues relating to sexual behaviors. In a pluralistic society, you just can't argue that the tradition forbids it. If the tradition forbids it, and if the tradition is a compelling source of moral restraint, then people will be restrained. But the people are not restrained because the tradition is a withered husk that has little effect in restraining even those who claim it's important for them.

The problem is not legislative, but that the moral force of the tradition is now so anemic. The tradition simply cannot justify the constraints it prescribes in a way that makes sense to people living in a pluralistic market-driven society.

You just can't have one (culture wide traditional restraints) and the other (consumer capitalism) at the same time. If you want tradition to be the primary shaper of your way of life, there is only the Amish option, or something like it. Or you could go native in some premodern cultural backwater. In the pluralistic mainstream world in which most people live, the modern rights tradition, for all its limitations, is the only thing that has any heft.

Black Sea said...

"If you accept the premise that all humans have inalienable rights, . . . "

Of course, this premise is a matter of faith, including the willingness to believe that others share this faith with you (otherwise, it's social utility quickly breaks down).

The idea that all humans have inalienable rights emerged from religion, and remains, in a sense, explicitly religious, in that there is absolutely no empirical basis for such belief.

In a pluralistic mainstream world, this faith may prove no more durable that faith in traditional morality.

Anonymous said...

According to the eastvold blog in the 3rd comment down: "teen pregnancies have become less common..." this seems to be statistically correct, at least nation-wide. It's good news, but not the whole story. In my 12 years of volunteering at a pro-life Crisis Pregnancy Center (non-sectarian, but founded & largely staffed by Catholic women), our largest age group of clients has been the 20-25 year age group. Most are college students or working full time. Some are married. Some have already aborted a first pregnancy. Only a few have begun to question premarital sex as a Cultural Norm; most take it completely for granted. I devoutly hope that many younger people are "more likely to make (or counsel...)traditionally moral choices", but I've not personally seen it very often, alas.


Patrick Deneen said...

RE: Eastvoldian observation, the most recent studies show...