What Is the Government's Role in Promoting Morals? ... Seriously?
Cole, G. Marcus, Harvard Journal of Law & Public Policy
In thinking about the government's proper role in promoting morals, it is helpful first to understand the nature of the disagreement. Part I of this Essay examines what is commonly meant by--as the great Lon Fuller described it--the "morality of law." (1) Following Professor Fuller's framework, this Essay distinguishes between two very different moralities of law: the "morality of duty" and the "morality of aspiration." (2) The morality of duty consists of the basic proscriptions--against murder or theft, for example--required by any governmental authority. (3) The morality of aspiration, however, is a different matter altogether. It comprises the rules associated with promoting virtue. (4) Part I concludes by recasting government's role in promoting virtue, in light of Professor Fuller's insight, as an attempt to promote a specific type of morality: the morality of aspiration.
Part II explores the wisdom of giving the government the role of regulating the morality of aspiration by asking why there is an apparent inclination to legislate virtue. The Essay concludes that this inclination owes more to history than to nature and can be traced to the merger of the state and the church in Tudor England. "Aspirational morality" was once the exclusive province of the church, outside the jurisdiction of the state. King Henry VIII, however, saw this separation of church and state as onerous because the Church repeatedly exercised its freedom from his control by condemning his adultery as "immoral." (5) To correct this state of affairs and facilitate his own "affairs," King Henry commandeered the responsibilities of the Church and made morality the responsibility of the State.
Finally, Part III suggests that it is a mistake to look to government for moral guidance, even in the rare case when a society can agree upon moral principles. There is no reason to assume that democratic governments are virtuous in theory, and there is good reason to believe that they fail to reflect popular concepts of virtue in practice.
I. LON FULLER'S DICHOTOMY: THE MORALITY OF ASPIRATION VERSUS THE MORALITY OF DUTY
Those who characterize law as a moral enterprise are undoubtedly correct. It is important, however, to determine at which level it is appropriate for morality to drive the law. Professor Lon Fuller distinguished between two different types of morality with which the law deals: the "morality of aspiration" and the "morality of duty." (6)
The morality of aspiration is that conception of moral principles to which humans ought to aspire (7) It is "the good life" of virtue, to which Professor Barnett has referred. (8) It is the "higher" standard of morality, to which both churches and individuals hope to conform, and which people hope to impart to their children.
The "morality of duty" is, on the other hand, that lower standard of morality and behavior by which a much greater part of society agrees it ought to be judged, measured, and even constrained. (9) These are the rules that all must be expected to obey: those certain, basic rules that must restrain those who have no desire to conform to the values shared by the rest of society. (10) The morality of duty is, in the nomenclature of Oliver Wendell Holmes, Jr., the morality for the "bad man." (11) All are constrained by a basic duty to respect the person and property of others.
More concretely, laws regarding murder or theft can be thought to impose the morality of duty. Laws requiring church attendance or graduate level education are representative of laws imposing the morality of aspiration. All agree that government ought to curb murderous or larcenous behavior. Professor Fuller's morality of duty is not frequently at issue; disagreements usually center on the morality of aspiration. The real question is not whether the government has a role in prescribing morals, but which type of morality the government should prescribe.
Professor Fuller's dichotomy focuses the debate on the wisdom of the government's imposition, through law, of the morality of aspiration. …