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A Note on Defining Legislating Morality and Justic


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A Note on Defining Legislating Morality and Justice In any discussion, it is important that all parties understand the terms being used. Unfortunately, as noted earlier, Christians have had a shotgun approach to what they consider to be appropriate roles for government intervention. In the attempt to form a coherent and consistent philosophy, we will have to be more precise. As such, this is an important minichapter. I encourage you to read this section carefully and to think through alternative ways to define the key terms. This will enable you to better understand my arguments and to test them properly. In defining “morality” and “justice” in the context of government activism, I am using the terms as they are commonly (although not exclusively) used in the political arena. I will refer to “legislating morality” (LM) as efforts to regulate and restrict consensual but sinful acts between two adults in which no significant, direct costs are imposed on others. Although both parties enter the agreement willingly and expect to benefit, Christians believe that, as sin, the activity is, on net, harmful. But the key point is that the behavior is voluntary for both parties and both parties expect to benefit-- what economists call “mutually beneficial trade.” Examples of this include sex outside of marriage and drug use. (A second category of LM is using government to force or legitimize “good behaviors” such as prayer in schools.) In contrast, “justice” issues will be those in which someone's rights are directly and significantly violated. Obvious examples of this include murder, rape, and theft. In other words, one party uses force of some type to directly harm another party; someone benefits directly at the expense of another. It follows that “legislating justice” (LJ) is the use of government to try to improve justice and to reduce or eliminate unjust outcomes. There is a long and involved debate about whether the focus of justice should be on opportunities or outcomes. Christians should be interested in both. As such, I will focus on the use of just methods to reach just outcomes. Thus, the key distinctions in my two definitions are the extent of the earthly consequence of the sin and whether those costs are imposed directly on others or not. Pope John Paul II draws the same line: “each individual’s sin in some way affects others. Some sins, by their very matter, constitute a direct attack on one’s neighbor.”1 Lysander Spooner distinguished between vices (“those acts by which a man harms himself or his property”) and crimes (“those acts by which one man harms the person or property of another”).2 Ralph Reed makes a similar distinction when he concludes that "the best standard for government is still John Stuart Mill's principle of allowing the greatest liberty possible until someone else's life or liberty is jeopardized."3 Of course, such a distinction between “morality” and “justice” issues is a simplification. First, the two terms are intertwined-- to act justly is a matter of morality and the morality of one's actions often determines the justice of the subsequent outcome.4 That said, the


distinctions between mechanisms (voluntary or coercive) and anticipated outcomes (mutually beneficial or not) will still serve as a useful model. Second, both justice and morality issues involve costs imposed on others. (In fact, everything we do or don’t do affects other people.5) Proponents of LM often argue that other parties are indirectly harmed by gambling, prostitution, etc., and thus, that government activism is warranted.6 However, their view becomes untenable if extended very far.7 For example, consider a new college graduate who enters a profession. Although he enters into a mutually beneficial trade with his employer, he indirectly harms other workers in his field by competing with them and lowering the market wage. Moreover, when you buy something from X, you decide not to buy it from Y, making Y worse off. In a word, if we were to use the government to prohibit all (consensual) economic activity that has some negative impact on others, we would never be able to engage in trade-- except that decision would harm X and Y!8 At the least, this framework is helpful in distinguishing between more and less significant and direct costs-- from murder to second-hand cigarette smoke. Clearly, there are important distinctions between the size of the costs imposed on others from a variety of sins-- for example, by not being charitable to the needy, driving too fast, believing in the central tenets of a false religion, being a serial rapist, and eating an extra piece of pie. Should the government legislate against all of these sins? When do the costs become significant enough to allow Christians to righteously invoke government solutions? To the extent that these costs can be mapped on a spectrum, one could argue that as the costs become larger and more direct, there is a greater potential role for government activism.9 Likewise, on a practical level, it will be much easier to advocate the reduction of clear and direct costs than subtle and indirect costs (or whose definition as a significant cost requires Biblical revelation.) In sum, I recognize that morality and justice are connected in practice, but given the need for some sort of framework, for the sake of convenient labels, and recognizing their popular usage, these terms would seem to be a reasonable framework for our discussion. A Few Other Points... First, we must distinguish between instances when the government allows people to sin and when the government forces believers to sin (through omission or commission). And we must distinguish between what the Bible calls for in terms of the behavior of believers and what God expects from non-believers. In discussions about God's standards and our response to the authority of government, believers are often unclear, or at least sloppy, about the Biblical differences between these concepts. Second, abortion is too complicated to cover in the LM/LJ framework without further development, and thus requires a separate treatment. Further, the discussion of abortion and subsequent prescriptions is rather voluminous, and thus requires a separate section with two


chapters. I will cover this topic after developing the LM and LJ sections of the book. Third, proponents of LJ typically focus on equality of outcomes as opposed to equality of opportunity. There is a good reason for this: it is difficult if not impossible to directly observe “opportunity.” Unfortunately, outcomes are only a proxy for opportunity. Moreover, a preoccupation with outcomes is equivalent to a focus on the ends rather than the means to those ends. Do any means justify godly ends? Instead, Christians are called to think through the question of whether the prescribed means are godly and practical, as well as whether the ends are godly. As Jim Wallis notes, "We need a...commitment to justice...but to shape a new future we must find the moral foundations and resources for a new social vision."10 Unfortunately, many Christian prescriptions for government activism fail to have those foundations. Fourth, the frequent comparison of homosexuality and other LM sins to murder and other LJ sins is inappropriate and amounts to sensationalism. The former sins involve consent and voluntary behavior where both agents believe that they benefit; the latter sins involve the use of force and coercion where one party is clearly and directly made worse off by the actions of the other. Of course, all sins are equal in that they require the blood of Christ for atonement. But if one insists on treating all sins the same politically, they are stuck in the untenable position that all sin should be punished (equally) by government. Fifth, proponents of LM are fond of noting that “all laws legislate morality by definition”-thus defining LM as all-encompassing. But there are a number of problems with such a broad definition. Although the statement is true, it does not prove that Christians should engage in any particular legislative agenda. Again, we must study the means to the ends. Moreover, the fact that government policy can affect behavior is also not a proof that Christians should pursue such restrictions. For example, the government could “crack down” on Buddhism and co-dependent relationships, but that doesn't make it an ethical or practical method. Note that despite their immorality, many sins are not the subject of any Christian legislative efforts. In a word, such a broad definition of LM gets us no closer to studying this important question. Hopefully my definitions will allow us to reason through what God wants us to do-- and not to do-- with the tool of government. Sixth, failing to invoke government solutions-- as in the above examples-- is not equivalent to the government endorsing the behaviors. Thomas Aquinas said that “Human law cannot, therefore, prohibit whatever is contrary to virtue; it is enough for it to prohibit whatever destroys social intercourse, allowing everything else to be permissible, not in the sense of approving it, but of not attaching a penalty to it.”11 If you're not satisfied with my definitions of LM and LJ, find your own. But distinctions must be made; as noted above, an all-encompassing definition for LM is of no use in forming a consistent Christian philosophy of government.12 Without a viable alternative framework, a


rejection of the LM/LJ model-- a spectrum of the costs that a variety of sins impose on others-- implicitly equates rape and murder with smoking marijuana, eating too much junk food, and going to the horse track too often. After all, each of these impose costs on other people.13 Likewise, people often throw around the terms “justice” and “social justice” without defining them or wrestling with whether they have found appropriate means to these vague ends. It is crucial that we believe the right things for the right reasons. As Greg Jesson notes, "When people abandon truth, all they are left with are personal feelings expressed in indignant and self-justifying language...We are left with phrases such as, 'I just personally believe it' or 'That's the way I feel, so that's the end of it.'"14 If you find yourself saying those phrases in the face of legitimate questions about your beliefs on political activism, I encourage you to wrestle earnestly with the issues that follow. Paraphrasing Plato: “An unexamined faith is not worth having.” Notes
1. John Paul II, “Reconciliatio et Paenitentia”, #16, 1984; quoted in The Social Agenda: A Collection of Magisterial Texts, ed. R. Sirico and M. Zieba, Pontifical Council for Justice and Peace: Vatican City, 2000, p. 88. 2. L. Spooner, Vices Are not Crimes: A Vindication of Moral Liberty, 1875, chapter I. Spooner then argues that “unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual rights, liberty, or property...” 3. R. Reed, Active Faith, New York: Free Press, 1996, p. 278. 4. In “Libertarianism in One Lesson,” Tibor Machan notes another overlap. In distinguishing between “the Right’s idealism”-- seeking to regulate “spiritual or mental actions” (“the crafting of people’s souls”)-- and “the Left’s materialism”-- seeking to regulate “economic or material actions,” he notes that the two intersect “since body and soul aren’t ever sharply divided.” He then cites examples of this overlap-- the Right seeking “blue laws” and affecting commerce and the Left restricting free speech and thought at the expense of social freedoms. 5. E. Scheske, “Is There no Privacy?”, Touchstone, July/August 2001, p. 13. 6. A related argument is that the indirect costs are not particularly indirect-- for example, a supposedly strong causation between pornography and child abuse. But, in addition to questions about whether this connection is merely correlation, we still run into the same difficulty-- should Christians advocate prohibitions against cars, alcohol, guns, legalistic homes, and so on? If one argues that pornography is different because it is “worthless,” they should at least be wary of giving powers to a government which may someday view Christianity as a worthless folly. If one argues that pornography is different because the costs are substantial, to be consistent, we also need to vocally pursue LM on issues like extramarital sex, false religions, and smoking cigarettes.

5 7. “Such a thing as government, formed by voluntary association, would never have been thought of, if the object proposed had been the punishment of all vices, impartially; because nobody wants such an institution, or would voluntarily submit to it. But a government, formed by voluntary association, for the punishment of all crimes is a reasonable matter; because everybody wants protection for himself against all crimes by others, and also acknowledges the justice of his own punishment, if he commits a crime.” L. Spooner, Vices Are not Crimes, Chapter XI. 8. In a book review of Richard Epstein’s Principles for a Free Society, Lynn Scarlett lists other minor “externalities”: “Leaves from one person’s tree fall onto another’s yard; a car door sounds across the road, jolting someone from his midday reverie; a plane flies 30,000 feet overhead, leaving an unnatural scratch upon the sky; and neon pink trim around the windows of a house offends a neighbor’s sense of aesthetics and propriety.” (Reason, March 1999, p. 64.) 9. The same is true in economics. If markets do not function particularly well, as in the cases of pollution, national defense, significant degrees of monopoly power, etc., government can improve the workings of the market-- at least in theory. 10. J. Wallis, The Soul of Politics, New York: The New Press, 1994, p. xxiv. 11. Quoted in From Irenaeus to Grotius: a Sourcebook in Christian Political Thought, 100-1625, ed. O. O’Donovan and J. O’Donovan, Grand Rapids: Eerdmans, 1999, p. 360. 12. For example, see: M. Bauman, “The Falsity, Futility and Folly of Separating Morality from Law”, Christian Research Journal, p. 21ff. Likewise, Geisler and Turek’s Legislating Morality: Is it Wise? Is it Legal? Is it Possible? (Minneapolis: Bethany House, 1998) suffers from the same failure, arguing simply that consensual sins impact others too (see: p. 33-34, 44-45). As such, sadly, their efforts add much less to the debate than they should. Tom Minnery’s Why You Can’t Stay Silent: A Biblical Mandate to Shape our Culture (Wheaton, IL: Tyndale House, 2001) argues for Christian political involvement in broad terms (LM and LJ), but then almost exclusively provides examples of LJ or leaves the matter undefined. (See: p, 20-25, 29, 47, 49, 53-54, 65, 67, 68. The other examples are using zoning laws in trying to reduce abortion and laws restricting gambling-- both of which we will discuss later.) 13. "We see that as soon as we surrender the principle that the state should not interfere in any questions touching on the individual's mode of life, we end by regulating and restricting the latter down to the smallest detail...[The individual] becomes a slave of the community, bound to obey the dictates of the majority." (L. Von Mises, Liberalism: The Clasical Tradition, Irvingtonon-Hudson, NY: Foundation for Economic Education, 1996, p. 54.) 14. G. Jesson, "The Train Wreck of Truth and Knowledge", in Reclaiming the Culture: How You Can Protect Your Family's Future, ed. A. Crippen II, Colorado Springs: Focus on the Family Publishing, 1996, p. 50.

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